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CHAPTER IX.

GUARDIAN AND WARD.

SECTION 66. DEFINITION AND CLASSIFICATION.

A guardian is one who has, by the law, the care, custody, control or management of either the person or estate of his ward. The different classes of guardians are-natural guardians, testamentary guardians, guardians of the estate, guardians of the person, guardians ad litem.

SECTION 67. GUARDIANS—How APPOINTED, AND BY

WHOM. Any adult person of sound mind and good character may be appointed a guardian, except a married woman (without the consent of her husband), at common law and in some states.

A guardian may be appointed for a minor, for an insane person and sometimes for a spendthrift. A guardian will be appointed for any person who is so far from being in his right mind that he is unable to take proper care either of his person or his property. Such appointment will be made by the court having proper jurisdiction.

A guardian for an infant may be appointed either by the father in his will (but in Illinois, such appointment will not be allowed to defeat the mother's right to be appointed guardian if she is a proper person for the position); by decree of court having proper jurisdiction; or by the infant himself when above the age of fourteen years. Such appointment by the infant himself, however, will be subject to the approval of the court in order to protect the infant from the consequences of an improper choice.

SECTION 68. POWERS, DUTIES AND LIABILITY OF

GUARDIAN.

A guardian is bound to use due care and diligence in caring for the property of his ward, and will have the power to perform all necessary routine acts, such as collecting rents, etc. A guardian cannot buy or deal with the property of ward for his own advantage. Such a transaction is a fraud per se, and will be set aside by the court without proof of actual fraud. A ward cannot make a valid gift to his guardian.

As a ward cannot sue for himself, the guardian is the proper party to sue for him. The guardian generally sues in his representative capacity, but in Illinois, by statute, the guardian sues in the name of the ward.

The fact of guardianship must be proved by the records of the court by whom the guardian was appointed. A guardian has the power to make an agreement for submitting any claim of his ward's to arbitration, but he cannot, in absence of special statute authorizing him to do so, bind his ward by any agreement of compromise, without the sanction of the court to whom the guardian is responsible.

A guardian has power to sell personal property of ward's. A guardian may lease real estate of ward's, but not for a period beyond that at which the ward will become of age.

A guardian has no power to conduct or carry on any business for the ward. A foreign guardian must be appointed in every state, besides that in which the ward lives, where there is property belonging to the ward. A guardian can never waive any right of ward's. A guardian can only sue in the courts of the jurisdiction in which he was appointed. In Illinois, however, a foreign guardian is given by statute a right to sue in the courts of Illinois.

A guardian may ordinarily require the ward to work and apply the wages of ward towards his support. A very high degree of care is required of guardian in investing the funds of his ward, but he is not an insurer and is not supposed to be infallible. The better rule is that the guardian has now power to change the domicile of his ward, although the cases on this point are conflicting.

A guardian, unless he is entitled to the services of his ward or stands in loco parentis, cannot recover for her seduction.

A testamentary guardian for an infant is one appointed by the father of the infant in his will. A testamentary guardian has no greater authority than any other guardian, unless he is given such additional authority by the terms of the will of the father.

Joint guardians occupy a similar position to joint trustees or receivers. They are not liable for the misdoings of the other guardian or guardians unless they contributed thereto either directly or by their negligence. If one of two joint guardians dies or refuses to serve the other will then act as sole guardian. The court having proper jurisdiction may at any time remove a guardian for misconduct on his part. A guardian cannot repudiate the contracts of his ward. Such right of repudiation is personal to the infant.

One of the first and most important duties of the guardian is to furnish necessaries for the support of his ward.

The corpus of the estate of an infant, may, with the authority of the court, be resorted to for the support or education of the ward, when such action appears to be for the best interest of the ward. Where a ward is taken into the family of the guardian and lives there, rendering domestic services, the presumption is that the services and support are mutual and the guardian cannot recover for support. Under proper circumstances, however, the guardian may board the ward and be entitled to receive pay therefor.

The guardian will be liable in his representative capacity for necessaries furnished to his ward by third parties when he neglects or refuses to supply the ward with such necessaries.

When a guardian makes a contract in excess of his authority, the guardian alone, and not the ward or the estate will be liable thereon.

A guardian is liable to his ward for any damages arising from any breach of trust or omission of duty on his part. A guardian is bound by law to file proper statements of his accounts at certain definite times. This is a matter entirely regulated by statute in the different states.

When any person is aggrieved by a settlement of a guardian, he may come into court and file exceptions and the points thus raised will be tried by the court. The effect of the confirmation of a guardian's settlement will be to put the approval of the court upon it and to protect the guardian. Such a settlement thereafter cannot be attacked collaterally, but can only be set aside by proper proceedings in a court of chancery.

The duty of the guardian upon the ward's attaining his majority is to turn over his estate to him and to render him a full and complete account of his doings in relation thereto.

A guardian is required to give bond, and with proper securities for the faithful performances of his duties. In case of misappropriation of property or other misconduct on the part of the guardian, the ward has a right of action against the guardian and his sureties for all damages received. The sureties on the bond of the guardian are liable to the amount of their bond, for all acts of omission and commission of which the guardian may be guilty to the prejudice of the estate of the ward. Irregularities in the sale of ward's property by guardian may be cured by the subsequent act of the court in approving such sale. Land belonging to ward can only be sold by order of the court.

A judgment against a guardian in his representative capacity will bind the estate of the ward in the hands of the guardian, but will not bind either the guardian or the ward personally. The administrator of the estate of the parent of an infant has no power as guardian. A ward has the right to disaffirm any unlawful act of his guardian, or any act done by the guardian in excess of his authority. Guardians are allowed reasonable compensation for their services. The appointment of guardian has no extra-territorial effect. A guardian cannot delegate his authority.

A debt owed by guardian to estate of ward will be treated by court as so much ready money in the hands of the guardian belonging to the estate of ward. A release of guardian by ward will be carefully scrutinized by court, and if there is any element of unfairness or undue advantage taken by the guardian of the ward, the release will be set aside. When the guardian has misappropriated any property of the ward, the latter, upon attaining his majority, can follow the trust property into the hands of a third party so long as the identity of the property can be traced.

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