Guardianship
When a person cannot take care of themselves or manage their assets, the Court may appoint another person as their guardian to care for and legally represent them. The responsibility that the guardian assumes over the ward is known as guardianship. It is the legal relationship that allows a person, whether natural or legal, to be responsible for another.
Responsibility for Another Person
What is a legal guardian?
A guardian is a natural or legal person who is appointed by the court and has the authority to represent or assist another who, without being subject to parental rights, is unable to act on their behalf due to their minority or the situations specified by law, such as partial or total incapacity.
How is a person subject to guardianship known?
Persons subject to guardianship, be they an unemancipated or emancipated minor who is not under the parental rights of their parents, and the person of legal age whose capacity to act is restricted by a judgment of incapacity on the grounds set forth in the Civil Code are known as “the ward.”
Who can act as a guardian?
A guardian may be any natural person who is able to fully exercise their rights and who is not disqualified under any of the grounds provided in the Civil Code. The grounds for disqualification are the following: not being a resident of Puerto Rico, having been convicted of a crime involving moral turpitude and is not rehabilitated under the law, or any other impediment established by law.
Moreover, a legal person (a legal entity, corporation, company, among others) that is not for profit (to make money) and was created to protect minors or incapacitated persons may also be appointed as a guardian.
Who can be subject to guardianship?
Individuals who, as established by law, cannot take care of themselves or administer their assets. The following people may be subject to guardianship:
- minors who are not legally emancipated and are not under the parental rights of their parents
- persons of legal age declared incapacitated, so that their capacity to act is restricted by a judgment of incapacity issued by a court
In addition, the Court may appoint a guardian only to manage the assets and liabilities of a person who has been declared absent under the Civil Code. Likewise, a guardian may be appointed to manage the property of an incarcerated person who will not want willingly appoint a person to manage their property, if the nature, value, or the particular circumstances of ownership so require it.
Appointment of a Guardian
How is the appointment of a guardian requested?
A petition for the appointment of a guardian must be filed with the court. This petition may be filed through a legal representative or as a self-represented litigant, explaining the reasons for requesting said appointment. This petition may be joined by a petition to declare the person subject to guardianship as an incapacitated or absent person.
The judge may require all the evidence necessary for to render a decision, which may include the expert opinion of medical professionals who treat physical, cognitive, or emotional disorders. A Family Advocate (an officer of the Department of Justice) must participate in the proceeding.
The Court will only appoint a guardian after considering all the documentary and testimonial evidence required and seeking the best interests of the person who will be subject to the guardianship. In addition, if necessary, the court may appoint more than one guardian.
Regarding voluntary guardianship established through will, public deed, or law, once the person is unable to care for themselves or their property, the persons with standing may file a petition for guardianship and the Court will assess whether the proposed guardian is apt to assume this office, as well as the scope of their commission with respect to the person and property of the ward, before the guardian may exercise these functions.
Who may be declared incapacitated?
When a natural person’s capacity to act is totally or partially limited on the grounds provided in the Civil Code, the court will declare the person to be incapacitated and will proceed to appoint a guardian to assist them in their daily activities and legally represent them in all legal transactions where they are a party.
A person may be declared incapacitated because:
- their cognitive or emotional skills have been diminished or affected, permanently and significantly, preventing them from appreciating or understanding the content and extent of their actions.
- they have a physical or mental condition that prevents them from take care of their own affairs or interests, such as: moderate mental disability or a physical disability that prevents their effective communication by any means or requires assistance to be understood.
- they squander their estate excessively and unreasonably, with disregard for their own needs and those of their relatives.
- consume alcohol, drugs, or controlled substances, to the point of losing their ability to make decisions concerning themselves and soundly manage their property
Who may be declared absent?
An absent person is someone who has disappeared from their home or habitual residence without anybody knowing their whereabouts, who has abandoned assets and liabilites without leaving a representative in charge, and of whom there has been no news for over a year. In this situation, any person with standing (spouse, relatives with the right to inherit, any party with a legitimate interest in the estate, or the Department of Justice) may file for a petition for declaration of absence with the court that corresponds to the location of their property or the last known address, and the court will declare the person concerned as absent.
A declaration of absence may be issued after the court holds an ordinary proceeding where it will request and receive all the necessary evidence that shows that the person concerned is absent, that their whereabouts are unknown, and that assets and liabilities are left without a proper administrator. In addition, the judge will appoint a guardian and assign temporary possession of the absent person’s property.
When do the functions of a guardian begin?
The Court will examine the evidence presented by the petitioner (the person filing the petition) and will issue a resolution which will state whether or not the appointment of a guardian for the minor or incapacitated person is in order. If the petition is granted, the Court will appoint the guardian and will impose the conditions and duties of their commission.
This decision will be recorded in the Registry of Guardianships kept by the Office of the Clerk of the Court. The guardian will begin their commission and may properly carry out their functions after the appointment is recorded in the Registry of Guardianships. As for absent persons, the decision will be recorded in the Registry of Absent Persons kept by the Vital Statistics Registry.
Is the guardian required to post a bond?
Yes. The court may require the guardian to post a certain amount of money or other security to guarantee compliance with their duties and obligations before they begin their commission. The general rule is that a bond is a requirement to exercise guardianship, subject to the exceptions provided by law or where such person is exempted under the law from posting a bond, such as parents, grandparents, spouses, or guardians who will assume the ward’s expenses, among other exceptions.
When the circumstances of the case warrant it, the judge will require a bond after making a determination on the total value of the estate of the minor or incapacitated person, or of the yields produced, in accordance with the opinions of the experts consulted. In addition, the guardian will file an affidavit attesting to knowing and having provided reasonably accurate information to the court on the ward’s financial situation or the condition of the guardianship, and on the sufficiency and validity of the bond.
It should be noted that, during the term of the guardianship, the Court may modify the amount of the bond when necessary. In addition, to cancel the bond, a final accounting of the guardianship must be filed and approved, and all of the guardian’s duties have been extinguished.
Duties of a Guardian
What are the duties of a guardian?
Guardianship is a duty, which is exercised for the benefit of the ward and are under the protection of the court. Furthermore, there are tasks that require prior authorization from a judge before the guardian may perform them, such as resigning from the commission and renting the ward’s apartment for more than six months, among others.
Some of the duties of a guardian are the following:
• manage the interests of the ward in accordance with the law
• provide them with the treatment required by their condition
• facilitate access to a certain career or trade
• make an inventory of all assets under guardianship and seek the return on safe investments
• legally represent the ward
• request judicial authorization when required by law
• give an accounting to the court of the administration during the guardianship and upon termination
What can't a guardian do?
A guardian is not allowed to:
• buy for themselves or through another person the property of the ward
• donate or waive assets or rights of the ward
• pay themselves, without the authorization of the court, the credits that correspond to them as a guardian
When can a guardian resign from their commission?
As a rule, once a person is appointed guardian, they cannot resign or transfer their responsibilities, unless one of the following circumstances occurs:
• they become incapacitated after the appointment
• conflicting interests arise between the guardian and the ward
• any other circumstance that prevents them from exercising their duties diligently or, due to their age or health, they cannot fulfill their duties responsibly
• when the guardian is the ward’s spouse and has decided to seek a divorce
When does guardianship end?
Guardianship ends when:
• the grounds that gave rise to the guardianship no longer exist
• the court removes the guardian for the commission for failing to fulfill the duties of the office
• the ward reaches legal age or is legally emancipated
• the minor is adopted
• the ward dies
Please consult an attorney for more information on the appointment of a guardian and its effects.
Revised: March 2023