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Testamentary vs. Temporary Guardianship

A guardian is a person appointed by the court to make legal decisions for people unable to make decisions for themselves. This usually refers to children (under the age of 18), developmentally disabled adults, and the elderly. The two main types of guardianship, testamentary and temporary, can be confused due to their similar names. But they're used for very different purposes.

This article discusses the difference between testamentary vs. temporary guardianships in order to help you make an informed decision should you find yourself in need of setting one up for a loved one.

Testamentary Guardianship

A testamentary guardianship is one that's created in the event that one or both parents pass away. Generally, these are created in a will where parents identify their preference for who would be appointed as guardian for their minor child or their adult child with a disability who requires supervision over their person, estate, or both.

If the parents pass on while the child is still a minor or remains disabled, the court will determine the availability or appropriateness of the parents' testamentary guardianship selection. If the selected guardian is unable, unwilling, or found unfit to be a guardian, the court will appoint a different guardian. In that case, the state court will typically use the same legal procedure for appointing guardians as when there's no will to indicate a preference.

Temporary Guardianship

Some state statutes provide for temporary or limited guardianships. Temporary guardianships are generally granted by the courts to achieve a specific purpose for a certain amount of time. Once the purpose is accomplished, the guardianship is terminated.

Limited Guardianship

A temporary guardianship is different from what some states call a limited guardianship, which remains until a court order ends it. This is also called a limited conservatorship in some states, such as California. In California, limited conservatorships are only for adults with developmental disabilities. This type of limited guardianship isn't “limited" by time like other limited guardianships, but is limited by the types of decisions the guardian is legally able to make for the person who needs care.

Keep in mind that guardianship laws vary by state. It is important to review your own state's laws or talk to a local attorney to understand the requirements where you live.

Emergency Guardianships

One form of temporary guardianship is an emergency guardianship. This guardianship is generally granted where an emergency exists and someone is needed to give approval for the person to receive immediate services. A temporary guardian is appointed by the court to serve during the emergency only and for a limited amount of time, as set by the court.

Generally, the person being served by the temporary guardian is incapacitated, disabled or has special needs in some way. The court must determine that this person is unable to make the decisions because of minor age, mental disability, addiction, debilitating disease, or some other similar limitation. The court must also find that if a guardian isn't appointed, the person is at risk of serious harm or even death. Depending on the state, the court may also need to determine that there's no other person available who can make the emergency decisions for the incapacitated person.

The emergency guardianship order is generally granted for a short period, long enough to properly handle the emergency. For example, in some states, the emergency guardian may only act for up to 72 hours. After the emergency has ended or subsided, the temporary guardian must file a report with the court detailing the nature of the services they provided and describing the outcome.

Before Seeking Legal Guardianship, Talk to an Attorney

Guardianship, whether testamentary or temporary, can become quite confusing. It is easy to misunderstand the definition of either one and the stakes can be enormous. If you have questions about guardianship laws or have concerns specific to your situation, you may benefit from speaking with a local family law attorney.

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