Can a Guardian Be Sued for Negligence?

When an adult is not competent to make their own decisions due to dementia or other reasons, it is often necessary to have a guardian appointed for their protection. While this choice is rarely easy for family members, it should provide peace of mind that a responsible guardian is overseeing the incapacitated person’s (ward’s) care and needs. 

Typically, appoints a close family member or friend of the ward to serve as guardian. If a close family member or friend is not available and willing to serve, a professional guardian or public guardian may be appointed. Most guardians are diligent about fulfilling their obligation to protect the ward. Unfortunately, some are not, and some guardians even commit elder abuse. What recourse do loved ones have when an elderly loved one is abused or neglected by a guardian? Can a guardian be sued for negligence? 

Role of a Guardian for an Incapacitated Adult

A guardian is a fiduciary: someone who is obligated to act in the best interest of another person—in this case, the ward. The guardian must act in such a way as to restore the ward to the fullest possible physical and mental health, and to enable them to return to managing their own affairs if possible (unfortunately, with dementia patients, that often is not possible). When making decisions on the ward’s behalf, the guardian should involve the ward as much as they can, taking into account their wishes and preferences. 

As a fiduciary, the guardian must prioritize the well-being of the ward, and should avoid misconduct such as:

• Mismanaging the ward’s finances or using their assets for personal gain
• Engaging in transactions that benefit the guardian or another person at the expense of the ward, known as “self-dealing”
• Physically, sexually, or emotionally abusing the ward
• Failing to visit the ward or monitor the care they are receiving, such that the ward is not receiving basic necessities or is actively being placed in danger
• Neglecting to arrange for necessary care or services for the ward
• Failing to advocate for the ward’s rights and needs with care providers 
• Failing to communicate with the ward about decisions that affect them 
• Disregarding the ward’s known wishes when making decisions for them
• Isolating the ward from family members and friends to avoid detection of guardian negligence or misconduct
• Failing to comply with court requirements or orders regarding the guardianship

The guardian’s primary duty is to the ward, not to any other person.  However, if you are a family member of the ward and you feel that the guardian is withholding information you have a right to or isolating the ward from loved ones, you may want to take action.

Approaches to Dealing With Guardian Negligence or Misconduct

Depending on the situation, there are various steps you might want to take that don’t involve going to court. If the ward’s safety is not at risk, it may make more sense to simply communicate your concerns directly to the guardian, or request mediation of any guardian disputes that can’t be resolved by discussion alone. Filing a lawsuit when the problem can be dealt with directly can be unnecessarily inflammatory, especially if the guardian is a family member.

However, if you are concerned that the guardian’s actions or neglect is directly affecting the ward’s well-being, court action may be necessary. In that case, it’s important to consider your goal. Do you simply want the guardian to fulfill their duties to the ward? Do you want the guardian removed altogether and replaced with someone else? Or has the guardian harmed the ward or their estate in such a way that you believe they should be held financially responsible? Understanding what you hope to achieve is the first step in deciding what action to take.

Legal Options to Deal with Guardian Negligence or Neglect

If the situation is serious enough that you think court action is warranted, speak with an experienced guardianship attorney about your options. You may be able to get the court to review the guardianship and determine if the guardian is really fulfilling their duties or if they are engaging in abuse, neglect, or other misconduct. 

If the guardian is not doing what they should, the court may take appropriate action to ensure the ward’s well-being. That may include closer court supervision for the guardian, appointment of a co-guardian, or removal of the existing guardian altogether and the appointment of a new guardian. 

If the guardian is not removed, the court may also appoint a guardian ad litem (GAL), who is a neutral third party whose role is to investigate allegations of misconduct and provide an objective, impartial report to the court. 

What if you believe the guardian has breached their duties in such a way that the ward suffered damages? You may also be able to bring a civil lawsuit for negligence or breach of fiduciary duty. Michigan does not have a statute specifically authorizing lawsuits against guardians, but unlike some states, Michigan also doesn’t prohibit such lawsuits or insulate guardians from personal liability for neglect or misconduct.

In order to successfully sue a guardian for damages, the person filing the lawsuit would need to show:

• The guardian owed a duty of care to the ward;
• The guardian breached that duty;
• The guardian’s breach of duty caused harm to the ward; and
• The ward suffered loss or damages as a result.

In order to sue for negligence, a person must have standing (the legal right) to do so. If you are not sure if you have standing to file a lawsuit on behalf of an incapacitated loved one, contact an experienced elder law attorney. 

Of course, if the guardian’s actions are placing the ward in immediate danger, you will want to take immediate action by contacting Adult Protective Services to ensure the vulnerable adult’s safety. 

To learn more about guardian disputes or how to sue for negligence on behalf of an incapacitated adult, contact Estate Planning & Elder Law Services to schedule a consultation.