Professional Guardians – Pt. 1

Guardianship is the legal responsiblity for some aspect of a person’s life which they are unable to manage on their own.  It is a fiduciary relationship which requires the guardian to act honestly, in good faith, and strictly in the best interests of the beneficiaries of the guardianship.

Historically guardianship was developed to address the care and property of children with a deceased father. It has typically become a duty of a close relative. And from roman times has included stipulations to act in the interest of the person and not to profit from the control of any property and to account for ones guardianship. [1]

In recent time guardianship has been extended from children to cover incapable adults. These adults sometimes have significant assets – either through a lifetime of saving and investment or as a result of insurance settlements for the injuries that removed their capacity to act for themselves.

This change has also seen the rise of professional guardians that are typically for-profit organisations.

This article discusses the inherent conflict that emerges when a organisation has a duty to a specific person and also has a responsibility to it’s own charter and shareholders.

The first conflict is that an organisation cannot be held to account the same way that an individual can. From Roman times a guardian who breached their duty was not only financially liable but could also lose political and civil rights.[2] The concept of personal sanction remains where the guardian is a person as in the US case of April Parks [3]. Similar incidents have occurred in the UK.  The ability to not only seek restitution but to deny a guardian liberty to who abuses their position is a powerful sanction not available where the guardian is not a natural person.

Organisations are persons in law only. This removes the most severe sanction from organisations that act as professional guardians. They are not natural persons so cannot be denied personal liberty.

It also exposes the second major conflict – with only financial risk to ensure fiduciary duty the professional guardian’s analysis shifts to a profit/loss analysis based on the organisations liability and potential financial penalties weighed across the portfolio of guardianships assigned to the organisation.

The larger in size (both number of personnel and overall assets/profit) the professional guardian has the more tenuous the oversight to the organisations fiduciary duty to a specific individual and the more significant the organisations legal duty to its shareholders become. Typically, the compensation of senior executives has some tie to stock value. There is typically no tie the organisations fiduciary duties to people they have guardianship of.

This has numerous practical and policy implications. For example, when setting the compensation of people that implement an organisations guardianships senior executives focus is directed to what they are measured on, stock value and profit, not the organisations fiduciary duty to the person they have guardianship for – as such the guardianship is profit activity – not a fiduciary one.  It is also reflected in organisational policy, or lack thereof, to ensure that guardianships are implemented in the interests of the person – not the organisation. Policy has two costs, setting up and educating personnel about the policy, and most independent monitoring and enforcing the policy. Both are necessary to balance the profit motive with the organisations fiduciary obligations to the person they are professional guardian for.

The need for policy is especially important as in most common law jurisdictions the way to seek remedy for any potential breach is through the courts. Without policy, the organisations profit/loss analysis likely is based on the fact that statically those that might file motion regarding a breach are self-represented, as is increasingly the case throughout the world, while the professional guardian has access to legal counsel.

This is the third conflict – the power imbalance between individuals who might act in the persons interest and the professional guardian. This imbalance means that unless the breach is especially egregious or relations are very strained, the professional guardian is free to interpret their duties to the person with little concern for court oversight.

The next post will detail these conflicts as evidenced through my mother’s experience with a professional guardian – imposed by her court appointed counsel as a condition for that counsel supporting the removal of my mother from deplorable care.


[2] Ibid footnote 30


This entry was posted in BMO, Fiduciary Duty, Legal issues, Section 3. Bookmark the permalink.

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