Guardianship. The care of and responsibility for a person of non-age or infancy in regard to its person or property, or both. At Common Law, the father is the guardian by nature and nurture but the rights and duties relating to that office have been modified in favour of the mother by the (English) Custody of Infants Act, 1873 (36 & 37 Vict. c. 12, (English) Guardianship of Infants Acts, 1886 (49 & 50 Vict. c. 27), and 1925 (15 & 16 Geo. 5, c. 45), and the (English) Custody of Children Act, 1891 (54 Vict. c. 3). The main consideration is the welfare of the child. In modern times, guardians may be said to be of six kinds:-
(1) Testamentary.--By 12 Car. 2, c. 24, s. 8, the father, and by s. 5 of the Act of 1925, both father and mother have an equal right to appoint a guardian by deed or will to act after death respectively either jointly with the survivor or otherwise, as the Court may direct.
(2) Maternal.--Under the Acts of 1886 and 1925, s. 4, on the death of the father, the mother, if surviving, becomes guardian, either alone when no guardian is appointed by the father, or jointly with any guardian appointed by the father, or by the High or County Court if it shall think fit. A corresponding right is given to the father.
(3) Customary.--This guardianship, which was entirely local, and depended upon the law of the particular place where it existed, was found in the case of copyholds, ancient corporations, and gavelkind lands. Guardians of this kind have ceased to exist in respect of deaths after 1925; see Law of Property Act, 1922 and Administration of Estates Act, 1925. The father's authority of appointing a guardian under 12 Car. 2, c. 24' did not extend to copyhold property.
(4) Ad litem.--A guardian ad litem is a person who agrees or is appointed to appear and act for an infant, or a person of unsound mind not so found, who is made defendant to proceedings in Court. as to the appointment of married women as guardians ad litem, which is not favoured in, nor the practice of the Court of Chancery, see notes A.P. 1937 to R.S.C. Ord. XVI., r. 16.
(5) By appointment of Chancery.--This Court had power to appoint a guardian to protect the interests of an infant ward, where there was no guardian already. The guardian was usually of the same religion as the infant's parents, and must be solvent, of a moral, capable, and humane character, and resident in England. The wardship of infants and the care of infants' estates is continued to the Chancery Division of the High Court of Justice by the (English) Judicature Act, 1925, ss. 44 and 56.
(6) Guardian in Tort, or by Intrusion (Tutor Alienus).--This is an indirect guardianship, arising from a person intruding into an infant's property; if he receive the profits belonging to the infant he must account for them in Chancery, being regarded as the infant's trustee, See Wall v. Stanwick, (1887) 34 Ch D 763.