Know Your Rights: HIV

PrEP stands for “pre-exposure prophylaxis,” a method of preventing the transmission of HIV. A person who is HIV negative but at higher risk than average for contracting HIV can take two HIV medications (in one tablet) on a regular basis and, by doing so, greatly diminish the chance of acquiring HIV if exposed to the virus.

You can receive a prescription for PrEP by talking to a health care provider that provides PrEP consultations. Examples of these health care providers include your primary care physician, a community health center, sexual health clinics, or any other nonprofit health clinic. Find a clinic that provides PrEP consultations by visiting locator.hiv.gov.

See below for information regarding obtaining PrEP if you cannot afford it.

First find out why the provider is refusing to prescribe PrEP for you—and then contact Lambda Legal’s Help Desk. There are very few legitimate medical reasons for refusing to prescribe this medication upon request. We want to hear about health care providers who are refusing to prescribe PrEP so that we can address this significant obstacle to care.

No. Your decision to take PrEP is a completely private matter between you and your healthcare provider. There are no laws that require a person to disclose use of PrEP.

There should be no effect on your ability to obtain either, but that doesn’t mean that an insurance company will not try to deny coverage on this basis. If you or someone you know experiences difficulty obtaining health or life insurance as a result of using PrEP, please contact our Legal Help Desk.

Most insurance plans and state Medicaid programs cover PrEP. If you don’t have insurance or Medicaid coverage, other programs provide PrEP for free or at a reduced cost. A few of these programs are described below.

• Ready, Set, PrEP is a program funded by the US Department of Health and Human Services that provides free access to qualifying individuals, nationwide. Ready, Set, PrEP provides PrEP at no cost to those who qualify. You can apply for this program if (1) you don’t have health insurance coverage for prescription drugs; (2) you have taken an HIV test and received a negative result before starting the program; (3) you have a prescription for PrEP; and (4) you live in the United States, including tribal lands or territories. This program is available to all, regardless of income. Through Ready, Set, PrEP, you will not pay for the medicine, but the costs of clinic visits and lab tests may vary depending on your income. You can apply to receive assistance by either filling out the online application or by providing a printed version of the application to your health care provider.
• Co-pay assistance programs are sponsored by drug manufacturers and help cover part of the cost of PrEP. Through a co-pay assistance program, manufacturers will provide coupon cards that can cover up to a certain amount in co-pays a year toward your PrEP prescription. To qualify for a Co-pay assistance program, you must not receive benefits from any government sponsored insurance, such as Medicare or Medicaid. Gilead and ViiVConnect both offer these programs for HIV prevention medication. Their applications are available online.
• Patient Assistance programs are a different type of manufacturer sponsored assistance that may allow you to receive PrEP free of charge. To qualify, you must be uninsured, and these programs consider income level in determining whether you qualify. Gilead and ViiVConnect both have patient assistance programs and offer applications online or by phone.
• Some states have PrEP assistance programs. The benefits of these programs vary state to state. In some states, programs cover medication. In other states, programs cover clinical visits and lab tests. Some states’ programs cover both.

If you have taken PrEP orally, you are required to wait three months after your last dose before donating blood. If you have received an injection of PrEP, then you must wait two years before you are eligible to donate blood. The purpose of the waiting period is to ensure the donated blood is HIV negative. In particular, HIV prevention medication taken within the suggested waiting periods may interfere with testing and cause false negatives.

For now under federal law, most insurance plans are required to cover PrEP (pre-exposure prophylaxis) without cost-sharing, thanks to its designation as a recommended preventative service by the U.S. Preventive Services Task Force (USPSTF). This means that if you have private insurance or Medicaid expansion coverage in most states, PrEP and related services, such as necessary lab tests and medical visits, should be fully covered with no out-of-pocket costs.

If you are on Medicare, coverage can depend on your specific plan. Many Medicare Advantage plans include PrEP as part of their drug formularies. However, traditional Medicare (Parts A and B) does not typically include prescription drug coverage unless paired with a Part D plan or a Medicare Advantage plan offering prescription drug benefits. It’s essential to review your plan’s coverage or contact your provider for clarification.

For those enrolled in Medicaid, the situation varies by state. Most states provide full coverage for PrEP under their Medicaid programs, but the specifics can depend on whether your state has expanded Medicaid under the Affordable Care Act. Check with your state’s Medicaid office to confirm your benefits.

No, except in a few rare circumstances, it is against the law for someone to fire you or not hire you for being HIV-positive. Usually, an employer cannot even ask you if you’re HIV-positive.

However, both during the hiring process and once an employee is on the job, an employer may be able to ask medical or disability-related questions so long as they are 1) asked of all employees entering the same job position after making a job offer but before starting work; or 2) are related to the job and consistent with business necessity. For example, an employer may ask questions that are disability-related to either make sure that the employee can do the essential functions of their job (or in other words, the core duties of that position) or make sure that the employee does not pose a direct threat to the health or safety of others in the workplace. Still, an employer cannot refuse to hire someone or fire them for being HIV-positive if they are able to perform the essential functions of that job and do not pose a significant risk to others that cannot be managed with reasonable steps.

Further, if a worker with HIV requests reasonable accommodations because their symptoms require a modification of job duties, the employer may ask disability-related questions while the employer works with the employee to find a reasonable accommodation. An employer cannot legally fire an employee or refuse to hire them because a reasonable accommodation is needed or has been requested.

Under federal law employers may not fire or refuse to hire someone with HIV or another disability if the person can perform “essential” functions of the job. This ensures that the person will not be considered unqualified simply because of his or her inability to perform marginal or incidental job functions.

The essential functions of a job are its core duties—basically, the reason the job position exists. For example, an essential function of a typist’s position is the ability to type; an essential function of a school bus driver’s position might be the ability to drive and regular availability to work from 7-10 a.m. and 2-5 p.m. Monday through Friday.

Factors regarding whether a particular function is essential include, but are not limited to:

• The employer’s assessment as to which functions of the job are essential;
• Written job descriptions used to advertise the position or while interviewing applicants for the job;
• The amount of time spent on the job performing the function;
• The consequences of not requiring the current employee in the position to perform the function;
• The work experience of past employees in the job; and/or
• The current work experience of employees in similar jobs.

Employment decisions can’t be based on the fear that someone might be more ill in the future; only an employee’s current situation can be considered.

Similarly, fear of higher costs for medical insurance or workers’ compensation costs cannot affect an employer’s decision about whether to hire or fire someone.

No, an employer cannot fire or refuse to hire an individual based on their fear for the safety and health of others because a current or prospective employee has HIV. However, the employer can refuse to hire or fire an individual if the employer can establish through objective, medically supportable (and current) methods that there is a current, direct threat (meaning, a significant risk) to other employees’ health or safety that cannot be eliminated or reduced through reasonable accommodations. There are few, if any, occupational settings in which a person’s HIV presents a significant risk to the health or safety of others in the workplace. Further, an employer cannot refuse to hire or fire an individual because of a slightly increased risk of harm to others.

In addition to the direct prohibition against discrimination, the two features of the ADA that play an important role for people living with HIV are workplace confidentiality and the right to reasonable work accommodations.

Workplace confidentiality

The ADA outlines specific rules about providing confidentiality and privacy for job applicants and employees with HIV. First, applicants do not have to disclose their HIV status to a prospective employer unless it affects their ability to perform the job. Second, employers are limited as to whether they can ever test for HIV or ask questions that would reveal the status of a prospective or current employee.

Before making a job offer, an employer cannot test applicants for HIV or ask questions about an individual’s status. The employer may, however, ask about an applicant’s ability to perform job-related functions, for example an employer may ask if the applicant can lift a certain amount of weight for a package delivery position.

Once an employer makes a “conditional offer” (one conditioned solely on passing a physical or medical exam), the employer can require that a prospective employee take an HIV test, but only if the test is required uniformly of all persons considered for that position.

An employer can ask general questions about a prospective employee’s health prior to making a conditional offer of employment, but still only if the questions are not likely to reveal a disability. Furthermore, employers can’t use an employee’s answers to screen out people with disabilities unless the exclusion is based on inability to perform job-related functions even with a reasonable accommodation.

After an employee is hired, an employer cannot require a medical examination or ask about an employee’s medical information unless the examination or questioning is “job-related and consistent with business necessity.” Further, an employer cannot ask questions about an employee’s disability or health unless the employer is evaluating the employee’s request for accommodation or is concerned about the ability of an employee to perform the essential functions of his, her, or their job.

All information and records collected by an employer about an applicant’s or employee’s medical condition must be kept confidential by the employer.

Reasonable work accommodations

Another useful federal safeguard for employees living with HIV is the right to reasonable accommodations. Depending on the circumstances, an employer’s reasonable accommodations could include approving a flexible schedule, modifying the non-essential job duties, or agreeing to other adjustments that allow a disabled employee, including one with HIV, to perform the essential functions of a job.

Under the ADA, whether an accommodation is “reasonable” and must be provided depends on the specific job, the extent of the employee’s needs and the employer’s size. An employer has the right to ask for information to make sure the employee is disabled and in need of reasonable accommodations. However, it may be possible for a medical professional to establish the need for an accommodation without revealing a particular diagnosis, such as HIV. An employer need not provide an accommodation that is overly expensive or too administratively difficult.

Many states also prohibit disability discrimination, and some states expressly prohibit discrimination against anyone with HIV. In addition, some cities offer specific protections for workers with HIV. Though the Americans with Disability Act (ADA) is quite protective of people living with HIV, it only applies to employers with 15 or more employees, so there may be features of state law that make filing a claim under one of those laws the best option (for example, some state laws apply to smaller employers than the ADA covers).

However, employers with fewer than 15 employees only have to follow the applicable state law, so if a state law provides a narrower definition of disability, the employer may follow only the state law until they reach the 15-employee requirement.

If you’re a service member, a federal court has found that the Constitution and the Administrative Procedure Act (APA) bar your exclusion from enlistment and for consideration and promotions through commissioning processes as well as for deployment opportunities, save for a few rare deployment locations based on host-nation requirements. Additionally, the Constitution and the APA bar your discharge based solely on HIV-positive status.

Before making an official complaint about discrimination at work, an employee should consider contacting their employer’s human resources department. If the employee’s HR department cannot resolve the issue or does not respond appropriately, the employee may consider taking legal action.

An employee who believes that they have experienced HIV discrimination at work can consider filing a complaint with the Equal Employment Opportunity Commission (EEOC). Individuals are also entitled to bring private lawsuits under the ADA for disability discrimination but must first file a Charge of Discrimination with the EEOC. A Charge of Discrimination is a signed statement alleging that the employer engaged in employment discrimination and requesting that the EEOC act. For some cases, another individual, organization, or agency could file the discrimination claim on behalf of the employee to protect their identity. There are time limits for filing a charge that can vary greatly, but in general a charge must be filed with the EEOC within 180 calendar days of the date of discrimination. The EEOC is usually required to notify the employer that a charge has been filed against it.

If the employer is a public entity or a State or local government, the applicant or employee may consider filing a complaint with the U.S. Department of Justice (DOJ). If the employer is the Federal government, there is a different EEOC process.

If you need help determining the best way to make an official complaint about HIV discrimination at work, please contact Lambda Legal’s Help Desk. If you are seeking resources to help you navigate the complaint process with a local or state enforcement agency, please contact the Legal Help Desk.

That depends on your personal circumstances and specific work situation.

Some people living with HIV may not be able to safely disclose their HIV status at work, due to persistent HIV-related stigma and discrimination—or an employer’s sheer lack of information. Consider consulting a lawyer before revealing information at work.

If your HIV status is known to your employer, the federal Americans with Disabilities Act (ADA) generally requires employers to keep confidential HIV-related information they collect and prohibits employers from discriminating against people with HIV. However, for disclosures made outside of the protections of the ADA (for instance, disclosure to a co-worker or disclosure in a workplace with fewer than 15 employees), your employer or other employees may not be obligated to keep information about your HIV status confidential. Therefore, it’s important to be careful about discussing your HIV status and keep in mind that: 1) although there are legal protections against employment discrimination based on HIV status, there are also some gaps in what those laws cover; 2) confidentiality can be impossible to regain once information becomes public; and 3) discrimination may be hard to prove.

If someone disclosed your confidential HIV status to other co-workers or people in your workplace without your consent, you may be able to hold that person legally accountable for breaching your right to privacy. Liability varies by state, so consider contacting an attorney before taking any further action.

Common workplace accommodations made for people with HIV include time off for doctor’s visits and flexible work schedules for employees who experience fatigue at certain times of day.

To request a reasonable accommodation as a person living with HIV, follow these steps:

• Approach your immediate supervisor first.
• If your immediate supervisor does not respond favorably, you may need to enlist the support of your human resources department or a union representative, if you have one.
• Keep in mind that not everyone you speak to in your workplace may be held legally accountable to protect your confidentiality, especially those who are neither in Human Resources nor in a chain of supervision over you.
• If your employer asks for proof that you are disabled, you may want to consult an attorney before making a disclosure about your HIV status.
• Your employer may consider it sufficient for your doctor to explain in writing that you have a “chronic condition” that causes you to need the accommodation you are requesting, without specifying what that condition is. However, some employers do require their disabled employees to provide a medical diagnosis.

Consider the following when making a request:

• Be specific. Put your request in writing and use the word “accommodation.”
• Be strategic. Always emphasize how productive the accommodation(s) will make you.
• Be realistic about your request. Your employer’s obligation to accommodate you will depend on the particular facts of your situation, such as the size and type of business, the job at issue and the type of accommodation you are requesting.
• Ask your employer to be prepared to address any backlash you receive from coworkers who feel you are getting “special treatment.”
• Be pro-active. Bear in mind that you will not be in a good position to negotiate if you request a reasonable accommodation retroactively. For example, you will be in a better position if you ask your employer ahead of time for flexibility about your arrival time, rather than waiting until you are approached by your supervisor for arriving late to work frequently, and then saying, “You need to let me come in late because I have a condition that makes it very difficult for me to be on time.”

Employers can determine accommodation requests on a case-by-case basis. This means that a particular accommodation request may be considered reasonable in one case and unreasonable in another. Request an accommodation based on your specific needs and not based on accommodations your employer has or has not granted for others in the past.

Lambda Legal’s HIV Project has used the Americans with Disability Act (ADA) and (in the case of Taylor v. Rice) the federal Rehabilitation Act to win policy changes and settlements in a range of cases, including these key victories:

Matter of Matthew Cusick and Cirque du Soleil

• Matthew Cusick, a performer who was fired by Cirque du Soleil for having HIV, won a record cash settlement and forced Cirque to initiate companywide antidiscrimination training and alter its employment policies worldwide concerning people living with HIV.

Taylor v. Rice

• A U.S. State Department employee who was barred from the Foreign Service forced the Department to adopt new hiring guidelines and lift its ban against hiring people with HIV as Foreign Service Officers.

Hickman v. Donna Curry

• A sandwich shop employee who was fired for having HIV received a settlement with terms that include company-wide policy changes.

Roe v. City of Atlanta

• A qualified man who was barred from joining the Atlanta Police Department (APD) because he has HIV lost before the trial court. However, Lambda Legal teamed up with his lawyer and took his case on appeal, got the trial court decision reversed, and secured a sizable settlement and citywide policy changes.

Harrison v. Roe and Wilkins v. Austin

• The Department of Defense (the world’s largest employer) must allow enlistment of HIV positive individuals

This is a deeply personal decision that individuals must make for themselves. The most common situation involving a legal obligation to disclose one’s HIV-positive status is to sexual partners—not previous partners, but current and new ones. Some states require this. See “Disclosing your HIV Status” and “HIV Criminalization” for more information.

You also may have a legal obligation to disclose when you share injection drug equipment with someone; donate blood, organs or tissue; do a certain job (there are very few of these); or visit a physician or a dentist in the state of Arkansas (the only state with this requirement).

In general, Lambda Legal does not encourage people to disclose their HIV-positive status to employers and service providers who might discriminate unless there is a legal obligation to provide that information or it is in the person’s best interest to disclose. Lambda Legal is working to limit or eliminate the instances in which disclosure of one’s status is legally required.

On the other hand, Lambda Legal recognizes the benefits of voluntary disclosure—both for the person living with HIV and for the people in their lives—when it is truly safe for the person to share this information. With those benefits in mind, we will continue to work toward a world where it is not only safe to do so, but where people living with HIV feel empowered to share their status, are not stigmatized or marginalized as a result, and can thereby access the care and support they need from family, friends and co-workers.

Threats to disclose your HIV status by loved ones, friends, and acquaintances is a difficult situation to navigate, particularly the social repercussions of an unauthorized disclosure. While the threats are typically meant to harass, private individuals—like family and friends—are generally not bound by privacy laws after you voluntarily disclose your status. However, legal protections to protect you against discrimination may be available. Some of the legal protections available to individuals with HIV may include: (1) protections in housing contexts under the Fair Housing Act; (2) protections in hiring and employment matters under the Americans with Disabilities Act; (3) protections under state domestic violence laws from domestic violence by partners that use your status to control you; (4) protections against other types of discrimination under state and local laws.

Lambda Legal is a national organization that assists with cases likely to change the law or that will affect numerous individuals or a large institution. While we do not have the resources to represent most individuals, it is important to connect to a local HIV organization or attorney who can guide you through any laws or legal protections that apply to your specific case. Additionally, there are several HIV Support Groups that operate nationwide that might be able to support you in your care. You can find HIV Support Groups for support and care: https://www.verywellhealth.com/best-hiv-support-groups-4843445

If you are experiencing domestic violence, contact the National Domestic Violence Hotline for support and resources: https://www.thehotline.org/

Because your HIV status is personal medical information, you have a right to keep it private and confidential. It is critical that this right be respected by health care providers and insurers, but it is important in other realms too, because having an HIV diagnosis often still carries great stigma.

In the early years of the epidemic, a number of states enacted laws to protect the privacy of HIV-related information. Unfortunately, some of these protections have been eroded in recent years by both public health and law enforcement officials. Public health officials have used information about HIV status to encourage testing and to try to keep HIV-positive people in care. Law enforcement officials have used it to punish people for allegedly failing to disclose to their sexual partners (see HIV Criminalization section).

The right to privacy and confidentiality varies by state, but one thing holds true across the board: The more people to whom you voluntarily disclose your HIV-positive status, the harder it is to claim the right to keep it private. And the choice to be “open” about your HIV-positive status is not easily undone, so the decision to be out about it should not be made lightly.

The three main sources of protection for HIV-related information are the Health Information Portability and Accountability Act (HIPAA), state laws specifically protecting HIV-related information, and “common law” created through lawsuits, such as those including claims for invasion of privacy or defamation.

HIPAA applies primarily to medical information that is disclosed or shared between a patient and a health care provider. Also, if there’s a violation, patients can’t file lawsuits on their own; such cases can only be prosecuted by the U.S. Department of Health and Human Services (HHS) Office of Civil Rights (OCR).

The state laws specifically protecting HIV-related information vary widely from state to state. Many of them apply only to test results or to information shared within the context of the patient-provider relationship. And because the monetary awards are often small, they aren’t a very strong deterrent—although some advocates have been able to use these laws to leverage out-of-court settlements or better behavior by those in violation.

Lawsuits brought under state common law are another response to consider when there has been significant harm that can be documented. Such cases are not easy to win, however. It is best to consult an attorney to determine whether this is a good legal strategy for you.

If you believe your privacy rights have been violated and are seeking resources to help you navigate these options, please contact Lambda Legal’s Help Desk.

Lambda Legal can’t tell you the best way to handle such an inquiry because, for example, sometimes just by refusing to answer, you will be presumed to have answered the question. But we can tell you what the law says about this:

A potential employer is not legally allowed to ask you this question if the company has not yet offered you a job. If you have been offered the job—contingent only upon successful completion of a medical exam—or are already working in the position, an employer is allowed to ask if you are HIV-positive only if they ask the same question of everyone who holds this or a similar position. Either way, you may want to ask whether and/or how a person’s HIV status is relevant to the ability to do the job.

There are still a few occupations for which employers can legally ask about someone’s HIV status. However, Lambda Legal is working on reforms that would make it clear that HIV-positive individuals can safely perform any job in any occupation without any special accommodations.

In the meantime, it is wise to either refuse to answer or to be truthful in your response. Lying about your status in response to a lawful inquiry can be a problem later if you end up trying to take that employer to court.

The answer to your question depends on the reason you have disclosed your status. If you are disclosing simply because you want people at work to know, then the employer probably is not obligated to keep that information confidential—in part, because you are not attempting to do so. If, on the other hand, you are specifically informing your employer because you must do so (for instance, to request an accommodation under the ADA), then the employer is required to keep such information confidential.

Similarly, if your boss asks you your HIV status simply because he or she is curious—and you choose to disclose your HIV status—then your answer may not be subject to any confidentiality restrictions. If, on the other hand, your employer feels the company has a right to know or an obligation to ask the question to evaluate your ability to perform the job safely, then the information must be kept confidential (though it might be possible to challenge that demand legally).

According to the EEOC, there are a few limited circumstances in which employers may have to disclose medical information about applicants or employees. Information may be disclosed where: (1) it is needed to provide a reasonable accommodation; (2) an employee needs emergency treatment or requires assistance due to a medical condition; (3) persons investigating compliance with the ADA and similar state and local laws request information; and (4) the information is needed for workers’ compensation or insurance purposes.

Because this area of the law can be ambiguous and confusing, it is a good idea for all employers to treat HIV status as confidential information, regardless of the reason for disclosure.

In all but one state, you are not legally required to disclose your HIV status when seeing a doctor, dentist, or other health care provider. (Arkansas requires disclosure to one’s dentist.) However, you should keep in mind that health care providers may be able to provide better care when they are aware of all factors that may be affecting your health. For instance, failure to disclose HIV medications may make it more difficult to identify adverse drug interactions. And any information you share with health care providers should remain confidential because it is covered by the provider-patient privacy protections.

So, while it may not be required, disclosure of HIV-related health information to trusted providers is a best practice for your personal health.  If you feel you have been mistreated or discriminated against after sharing your HIV status with a health care provider, please contact Lambda Legal’s Help Desk.

The Health Information Portability and Accountability Act (HIPAA), state laws specifically protecting HIV-related information, and “common law” created through lawsuits, such as those including claims for invasion of privacy or defamation all provide various rights to privacy in the health care setting.

HIPAA applies only to medical information that is disclosed or shared between a patient and a health care provider. Also, if there’s a violation, patients can’t file lawsuits on their own. Such cases can only be prosecuted by the U.S. Department of Health and Human Services (HHS) Office of Civil Rights (OCR).

The state laws specifically protecting HIV-related information vary widely from state to state. Many of them apply only to test results or to information shared within the context of the patient-provider relationship. And because the monetary awards are often small, they aren’t a very strong deterrent—although some advocates have been able to use these laws to leverage out-of-court settlements or better behavior by those in violation.

Lawsuits brought under state common law are another response to consider when there has been significant harm that can be documented. Such cases are not easy to win, however. It is best to consult an attorney to determine whether this is a good legal strategy for you.

If you believe your privacy rights have been violated and are seeking resources to help navigate your options, please contact Lambda Legal’s Help Desk.

Disclosure of your HIV status should have no effect on whether your doctor asks about your sexual practices. A good doctor—or other type of health care provider—is going to ask about your sex life if that information is relevant to the reason you are seeing this particular provider. As the patient, you always have control over what information you do and do not share with your doctor about your sex life. Just keep in mind that a doctor with all of the relevant information can better assess the situation and provide you with the recommendations, care, and treatment you need to maximize your health.

Living with HIV should have little effect on your ability to be a foster parent or to adopt a child. The only limited exception is if living with HIV makes you too ill to care for a child.  Because HIV is not transmitted through the type of household contacts involved in childcare, one’s HIV status is not relevant to one’s qualifications as a foster or adoptive parent. Lambda Legal helped change the regulations on foster parents living with HIV in Nevada,  and if you encounter a regulation or agency that excludes individuals living with HIV from adoption or foster care, please contact our Help Desk.

Your HIV status alone should not affect a court’s custody decision. Because HIV is not transmitted through the type of household contacts involved in childcare, one’s HIV status is not relevant to one’s ability to parent.  If a person is having serious HIV-related health problems that interfere with the ability to care for a child, that could affect awarding custody to that person. However, that type of impairment should be considered in the same way as any other physical impairment, including with respect to its duration and actual effect on the ability to care for a child. If your ex-spouse is utilizing your HIV status in a custody case as an argument against custody, consult with a family law attorney in your area.

The person with whom custody of children is shared should not use your HIV status against you to limit your interactions with the children or your partner (the children’s parent). Further, your HIV status should not affect the custody arrangement or your ability to interact with your partner or the children in any way.

Because HIV is not transmitted through the type of household contact involved in childcare, one’s status as an individual living with HIV is not relevant to a person’s ability to parent or to the safety of a child with whom the person has normal, everyday interactions in a household setting. Consult with a family law attorney in your area if the other parent or custodial guardian initiates court proceedings.