5(A)(ii). Displace the guardian

It may be necessary to seek to have a particular guardian removed or their powers restricted in order to give the client choice and autonomy, and to effectuate their evacuation from an institution. The lawyer should establish the legal duties and responsibilities of guardians under the law, identify where such duties are codified and determine how the performance of guardians is overseen. In many systems, the only apparent limitation to a guardian’s power is that they act legally. In many jurisdictions, guardians ostensibly have full discretion in making decisions on behalf of the client. Many laws contain little or no obligation on the guardian to solicit the opinion of the person under guardianship, and fewer still have an obligation that the guardian must follow the person’s will and preferences as required by Article 12 of the CRPD.

Almost every system has a guardianship authority which oversees the actions of guardians and may require them to act in the “best interests” of the person concerned. They may also require them to file reports on an annual basis about decisions taken and spending incurred. A lawyer can ask for these files to examine decisions by guardians and determine whether they are in compliance with the duties imposed on guardians. This could involve submitting a legal request to the guardianship authority or requesting an Ombudsman or other independent body to investigate.

In many jurisdictions, the court or local authority appoints a family member as guardian. In others, the director of a residential institution can be the guardian. In both scenarios, conflicts of interest may arise, particularly where the guardian will benefit financially or otherwise from decisions they make for people under their guardianship. Lawyers seeking to remove the influence of an unsympathetic guardian should research what national mechanisms exist to challenge conflicts of interest.

The respondents in actions to remove or replace guardians should be carefully considered. Lawyers could consider a number of legal actions, including:

• Challenging the guardianship authority for failing to effectively supervise the actions of the guardian;
• Challenging the guardian her/himself before the guardianship authority; or
• Challenging a legal or regulation gap through, for example, the constitutional or supreme court.

Where domestic remedies are lacking or inadequate, the lawyer should investigate the most appropriate international forum to which the case can be brought.