Guardianship law : doctrine, theory, objective
University of British Columbia
Master of Laws - LLM
Guardianship is a vital legal process designed to recognize and protect personal and property interests. The societal need for guardianship is growing, yet guardianship law is obscure and its theoretical foundation is uncertain. The first part of this thesis examines the historical foundation and doctrine of English law concerning persons with profound intellectual disabilities – then called “idiots.” Surprisingly, the theory or doctrine of parens patriae played only a limited role. After an examination of the royal prerogatives of the monarch, I conclude guardianship was an “active use” that survived the Statute of Uses. A use is a form of trust, but the phrase “theory of use” is utilized to reflect its unique form, distinguishing it from other kinds of trusts. The second part of this thesis constructs a theoretical framework for guardianship law today. A theory of use recognizes that after the migration of English law to the United States, such a theory must be compatible with state constitutions and must be modified to take into account that change in the form of government. There are two central features of a use, separation of title and protection in a court of equity. Title is separated into a ward’s equitable right and a guardian’s legal title. The guardian is assigned a positive role as legal title holder, especially in relation to other interest holders. Utilizing legal title includes processes of assuming title, protecting the ward’s rights and interests, and acting in the ward’s best interests. A guardian’s wide discretion in a highly individualized context is subject to legal, financial and practical limits. The features of equity are well-suited to protect the ward’s equitable right.
Attribution-NonCommercial-NoDerivs 2.5 Canada
Law, Faculty of