Testamentary vs. Temporary Guardianship

A legal guardian is a person appointed by a family or probate court to make legal decisions for people unable to make decisions for themselves. This usually applies to minor children (younger than 18), disabled adults, and older people.

This article explores the differences between testamentary vs. temporary guardianships. This information can be helpful if a loved one needs a legal guardian.

Testamentary Guardianship

If a minor child's parent or parents die, they should have a guardian. Testamentary guardianships allow parents to ensure their minor child has a guardian after their death. Parents can create testamentary guardianship in their wills.

In some states, parents can also name a legal guardian for their adult child with a disability who needs supervision over their person, property, or both. The appointed guardian is more than a caregiver. The testamentary guardian must act in the best interests of the child. This means managing the child's personal and financial affairs.

What Powers Does a Testamentary Guardian Have?

Testamentary guardians have significant decision-making powers. They make medical treatment decisions and, if necessary, general healthcare and mental health decisions. Testamentary guardians differ from other types of guardians because the parents nominate them in a will.

What Happens if the Testamentary Guardian Is Unavailable?

If the parents die while the child is still a minor or incapacitated, the court will determine the appropriateness of the guardian. If the appointed guardian is unable, unwilling, or unfit to be a guardian, the court will order an appointment of a different guardian.

New Guardianship Proceedings

In that case, the probate court will start new guardianship proceedings when there's no will stating a preference. Proceedings typically go as follows:

1. An interested party files a new petition for letters of guardianship.
2. The probate court sets a new hearing date.
3. Interested parties may appear in person or submit an affidavit.
4. The court asks for proof of incapacity.
5. Once the new guardianship case concludes, the probate court will issue new letters of guardianship.

Temporary Guardianship

Some state statutes provide for temporary or limited guardianships. The courts will grant temporary guardianships to achieve a specific purpose for a certain period. Once the purpose ends, so does the guardianship.

For example, a family member of a parent with an addiction disorder may file for temporary guardianship while the parent recovers. When the child's parent has healed, the purpose for the temporary guardianship ends. Full parental rights, including physical custody, go back to the parent with court consent.

Limited Guardianship

Temporary guardianship is different from what some states call limited guardianship. A limited guardianship remains in place until a court order ends it. Limited guardianships give the ward a sense of independence.

A limited partnership is ideal for those needing help in certain areas of their life. For example, a ward may need help only managing their finances.

In a limited guardianship, the limited guardian has power over specific areas of the ward's life. In the above example, the limited guardian has no decision-making power over the ward's healthcare. They do have control over financial decisions.

Legal Conservatorship

In some states, such as California, a limited guardianship is called a limited conservatorship. In California, limited conservatorships are only for adults with developmental disabilities.

A conservator has decision-making power over the ward's life. This includes medical care, social security benefits, and well-being. This type of limited guardianship isn't "limited" by time like other limited guardianships. The guardian can make limited decisions for the person who needs care.

Keep in mind that guardianship laws vary by state. You must 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 emergency guardianship. This type of guardianship happens when there is an emergency, and the child or adult needs immediate services.

The court appoints a temporary guardian to serve during the emergency only and for a limited time, as set by the court. Emergency petitions arise when the ward's finances are in danger of misuse. Emergency petitions are also appropriate where the ward is at risk of abuse.

The person needing an emergency guardian should have an incapacity, disability, or special needs. The court must determine that this person cannot make the decisions because of inability. Minor age, mental disability, addiction, and debilitating disease, are a few examples of incapacity. The court must also find that if a guardian isn't appointed, the person is at risk of physical or financial harm.

The court must also find that if a guardian isn't appointed, the person is at risk of physical or financial harm. The court also determines if there's no one available to make emergency decisions for the incapacitated person.

For example, the children of a parent with dementia try to misappropriate the parent's life savings. A concerned person or family member could petition for emergency guardianship. The emergency guardian has the authority over the ward's financial affairs while the court seeks a permanent guardian.

Time Limits for an Emergency Guardianship

The emergency guardianship appointment is for a short period of time, but long enough to handle the emergency. For example, if a child's parents get into a severe accident, that child has needs.

In some states, the emergency guardian may only act for up to 72 hours. The court may appoint an emergency guardian during that period. For example, if the parents are in a coma and the emergency guardianship has ended, a new guardianship proceeding may begin. The temporary guardian must file a report with the court accounting for the services they provided.

Emergency Guardians for Child Abuse Cases

In a child abuse situation, a social worker or interested person may discover potential child abuse. The immediate priority is the child's safety. Although the court may appoint a more permanent guardianship, the court can appoint an emergency guardian to protect the child. This person may be a guardian ad litem.

Guardianship proceedings for a permanent guardian may begin after an investigation.

What Is the Difference Between Temporary Guardianship and Power of Attorney?

Temporary guardianship and power of attorney are both legal arrangements that allow a person to make decisions on behalf of another. But, these two arrangements serve different purposes.

Temporary guardianship is used to appoint someone to make decisions on behalf of a minor or incapacitated adult. Temporary guardians have more responsibility and must make decisions about personal, medical, and financial matters. It is more restrictive and generally requires court approval. Guardians must also provide updates to the court.

A power of attorney is a legal document granting someone the authority to act on another person's behalf concerning financial and legal matters. Depending on how the parties draft the document, it can be limited to specific tasks or more broad. It does not typically cover personal or medical decisions unless specified in a healthcare power of attorney.

Power of attorney can be temporary or durable (lasting even if the person becomes incapacitated). It remains in effect until it is revoked or the person who granted it passes away. It usually does not require the court to establish.

You can draft a power of attorney on your own. But, many choose to get help from a lawyer to ensure the document is drafted correctly and reflects the wishes and needs of the individual granting the power. A family law attorney can clarify the scope of authority, address potential legal issues, and make sure the power of attorney complies with state laws.

Talk to an Attorney Before Seeking Legal Guardianship

Guardianship, whether testamentary or temporary, could be more straightforward. It is easy to misunderstand the definition of either, and the stakes can be enormous.

An experienced attorney can help you avoid legal issues and ensure your loved one is properly cared for according to their needs and best interests. They will answer your questions about guardianship laws and address concerns specific to your situation. Contact a local family law attorney to learn more.