A court-appointed guardian is not always able to maintain control over an active ward, and in certain circumstances, a ward’s conduct results in criminal prosecution of the ward.
Unfortunately, the Estates Code, which governs guardianships, and the Criminal Code do not offer much room for interaction. In fact, even though a guardian in a probate matter is appointed to “step into the shoes” of the ward and handle almost anything the ward could normally do for himself or herself, the guardian’s power does not extend to a criminal action. The standard for mental capacity in the Estates Code is vastly different from the legal standard in a criminal action. Even though an individual can be a ward with full guardianship, he or she can still be subject to criminal prosecution.
A guardian whose ward has been arrested will likely have many questions and concerns once the ward is arrested, but the guardian’s best bet in such a circumstance is to get the ward a criminal attorney as soon as possible. The guardian probably will not be able to act on the ward’s behalf in the criminal action, including even obtaining basic information about the ward’s case and visiting the ward in jail.
Further problems arise when the ward’s incapacity is of such a degree that prevents the ward from placing the guardian’s name on a list of visitors or being able to telephone the guardian. The ward also will likely not know what medications he or she must take, and the jail probably will not be able to administer medication unless the guardian provides it.
Although the guardian’s powers in a criminal action are severely limited, the best option a guardian has to ensure that the ward receives adequate care and attention is to find an effective criminal attorney as soon as possible.