When confronting the prospect of guardianship for a loved one, a threshold issue is who will apply to become the guardian. However, a natural concern of many prospective guardians involves the possibility that the ward might cause harm to another person or property: would the guardian be held liable for the resulting damages? The simple answer is no, as long as the guardian exercises reasonable care with respect to the ward.

In Berberian v. Lynn, 355 N.J. Super. 210 (App. Div. 2002), aff’d in part, modified in part, 179 N.J. 290 (2004), Diana Lynn was appointed guardian of her incapacitated father. While he was a resident of a long-term care facility, the ward allegedly pushed nurse Mary Berberian, causing her to fall and fracture her leg. The nurse sued the guardian, alleging that the guardian had “breached a contract or fiduciary duty, or both, as [her father’s] guardian.” Id. at 213. The trial court granted summary judgment to the guardian, thus dismissing the case against her. On appeal, the Appellate Division affirmed the trial court’s dismissal:

As the motion judge correctly concluded, [the guardian] cannot be held negligent because she was not the proximate cause of plaintiff’s injuries.

Although the nurse had claimed that the guardian had influenced the facility to transfer her ward from the psychiatric unit to the long-term care unit where the incident occurred, the court held that, “even assuming that [the guardian] significantly influenced the hospital’s decision to transfer [the ward], … that influence would not be sufficient to impose liability on [the guardian] for the alleged negligent actions of [the ward],” because that decision was within the hospital’s discretion.

The Berberian court cited with approval a New York decision, which had considered a similar claim and found that a guardian “is not liable for a remote cause, and he is only liable when the injury resulting flows directly from his omission.” Prudential Society v. Ray, 202 N.Y.S. 614 (App. Div.), aff’d, 239 N.Y. 600 (N.Y. 1924).

Of particular interest to the Berberian court was the fact that the hospital was aware that the ward had violent tendencies. Thus, even if the guardian had failed to disclose the ward’s violent tendencies to the hospital, as the nurse alleged, the hospital already had adequate notice of the risk that he posed.

The Berberian court noted that “courts are reluctant to impose liability on guardians for the actions taken by their wards, even when the individual is in the custody of his or her guardian.” In sum, it found that,

As guardian for her father, Lynn entrusted him to an institution that could attend to his special needs and there was nothing more that she could do to protect others from his negligent acts. Id.

If a guardian is aware that the ward poses a risk to others, courts will consider whether the guardian took reasonable steps to protect others from that risk; thus, in a Connecticut case cited by Berberian, because custodial parents had advised a police officer of their son’s condition, they were not liable to the officer for injuries caused by their son when the officer attempted to help him. Id. at 218.

The New Jersey legislature has enacted the following statute regarding the rights and duties of a guardian:

A guardian of the person of a ward is not liable to a third person for acts of the ward solely by reason of the relationship…. N.J.S.A. 3B:12-56(b).

The Manual for Guardians published by the New Jersey Judiciary, Supreme Court Judiciary-Surrogates Liaison Committee, reflects the concern that guardians take adequate steps to protect others if a ward has dangerous tendencies. The manual cautions that,

As Guardian, you are responsible for maintaining control over the Ward. If he/she becomes a danger to himself/herself or others, you must take all reasonable steps necessary to reduce the danger, even if it means a short involuntary commitment for evaluation purposes or relocation to a different caregiver/provider (i.e., residential, boarding home or nursing home).

In sum, a guardian is expected to act reasonably, particularly by minimizing danger if the guardian is aware that the ward poses a risk to others. However, assuming the guardian acts reasonably, liability will not be imposed on the guardian for the actions of the ward, simply by virtue of the guardian’s status as guardian.

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