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The purposes of statutes relating to guardianship/conservatorship proceedings are to safeguard the personal and property rights and interests of minors and incompetent persons.
The provisions for the appointment of guardians/conservators and the extent of their powers, duties, and responsibilities are determined by the laws of the jurisdiction in which the guardians/conservators were appointed and remain subject to the control and supervision of the court in which they were appointed.
In most jurisdictions, guardianship/conservatorship statutes are experiencing radical changes as a consequence of the desire of the legislatures to achieve a more rational balance among the rights of incapacitated individuals, the duty of society to care for its citizens unable to care for themselves, and the rights of the public to be safe from dangerous behavior.
A principal feature of these changes has been the "destigmatization" of the guardianship/conservatorship terminology. The following can be cited among the new terms that have been added or those which meaning has been redefined:
In this respect, state law must be thoroughly examined in order to ascertain the jurisdictional meaning and extent of such terms.
In general, a guardian/conservator has no authority without an order from a court of competent jurisdiction to sell, mortgage, lease, or otherwise encumber any property owned by the ward/protectee/conservatee unless the guardian/conservator is acting under statutory authority.
An act of a guardian/conservator, if not executed with proper authority, is voidable and may be totally void.
Statutory law usually sets forth the requirements that must be complied with in regard to transactions affecting property owned by the ward/protectee/conservatee. These procedures vary among the states although there is a certain degree of similarity. They tend to reflect many provisions that also apply to court-approved sales of decedent's real property and may be generally summarized as follows:
Note: The above procedures are not applicable or pertinent in some jurisdictions so state law must be fully researched.
In the absence of specific authority, given either by statute or by an order of the court, the guardian/conservator has no power to purchase real property with the ward's/protectee's /conservatee's funds.
Any unauthorized acquisition may be rescinded by the ward/protectee/conservatee when attaining majority (if a minor) or upon a restoration (if an incompetent).
The guardian/conservator has no title to any property owned by the ward/protectee/conservatee. Title to any real property of a minor or incompetent is neither vested in the "estate" nor in the "guardian/conservator."
Guardians/conservators are merely custodians of the assets of the wards/protectees/conservatees, without any title thereto. Legal title to any real property of a minor or incompetent remains always vested in the person of the minor or the incompetent.
Guardians/conservators are empowered, under the supervision of the court, to manage, care, and control any property owned by the ward/protectee/conservatee.
The condition of the title to real property acquired by a purchaser, lender, or lessee through a guardian/conservator's deed is unaffected by the fact that the deed is executed in compliance with an order of a court. The purchaser acquires the same kind of title that was owned by the ward/conservatee/protectee. The order of the court has no bearing whatsoever in regard to the clearing, release, or cancellation of matters, liens, or encumbrances that may be affecting the title. Consequently, unless the property is released of record, any such matters, liens, or encumbrances must be shown as proper title exceptions in title commitments and policies.
Any unauthorized or otherwise void sale, mortgage, or lease executed by a guardian/conservator may be ratified by the ward/protectee/conservatee upon attaining majority (if a minor) or upon restoration (if an incompetent).
State law must be researched to ascertain the procedure to be followed and the period of time within which the ratification my be effected.
Any unauthorized sale, mortgage, or lease executed by a guardian/conservator may be rescinded by the ward/protectee/conservatee upon attaining majority (if a minor) or upon restoration (if an incompetent).
State law must be researched in order to ascertain the procedure to be followed and the period of time within which the rescission may be effected.
A foreign guardian/conservator is one appointed by a judicial authority outside the state where the property is located or the ward/protectee/conservatee is domiciled.
In general terms, the authority of a guardian/conservator is limited to the state in which the guardian/conservator has been appointed and cannot exercise rights of guardianship/conservatorship elsewhere without first obtaining ancillary letters of guardianship/conservatorship from the local courts except:
Except as authorized by statute or the principle of comity, a foreign guardian/conservator cannot make a valid conveyance, mortgage, or lease of property located beyond the limits of the state where the guardian/conservator qualified.
In connection with the sale or encumbrance of any real property owned by a minor/incompetent/ward/protectee /conservatee, the following items must be fully ascertained and satisfied: