A court may order a legal guardian to be appointed for minors or adults. A legal guardian is an individual who is responsible for the care of another individual, known as a ward. Guardianship can be awarded on a temporary basis or on a long-term basis. A guardian can make decisions concerning matter such as the ward’s:
- Personal;
- Financial;
- Health; or
- Other matters as defined in the court order.
A legal guardian will remain in their position until such time as the circumstances that required their appointment no longer exist or an issue is cured. The guardianship may also be terminated if the court determines that the guardian is failing to carry out their duties and responsibilities as outlined in the guardianship order.
Temporary legal guardianship is not the same as temporary child custody. Temporary child custody orders are often issued during divorce proceedings during the interim time between the divorce being filed and the divorce being finalized.
In cases of an adult, they may need a legal guardian if they cannot meet their basic needs or cannot manage their own personal affairs. In some cases, a medical issue may render an individual incapacitated.
For example, a stroke or a heart attack can cause brain damage and result in the adult no longer being able to perform basic tasks or manage their finances or other affairs. Guardians for adults may also be appointed for developmentally disabled adults who are unable to live alone, such as individuals with Down Syndrome or low-functioning autism.
When is a Guardian Named?
A guardian may be named for a minor child in situations where the court determines a parent’s behavior makes them unfit or incapable of providing for the health and well-being of their child. Behavior that may cause a guardian to be appointment may include:
- Drug use;
- Mental illness;
- Neglect; or
- Sexual abuse.
Usually, in these cases, a guardian is responsible for the minor child until they turn 18 years of age.
The guardian of a child may also be named the guardian ad litem to represent the child’s interests during court proceedings. The court uses the best interest of the child standard during any proceedings concerning children. Pursuant to that standard, the court will appoint a close relative of the minor child as their legal guardian, if available. However, if it is necessary, a third party may also be appointed as the guardian.
A guardian can also be appointed for adults who are mentally incapacitated. Adult guardianships are generally long-term, as the conditions often last for the adult’s lifetime.
When a court determines that an adult is incapacitated or incapable of managing their own affairs, the court will issue a guardianship order which outlines the guardian’s responsibilities. The adult’s guardian may be responsible for things such as:
- Real estate;
- Property, including bank accounts or investment assets; or
- Medical care.
Temporary guardianship is common at times when the court determines there is an emergency. An emergency event may include an accident or illness. In these cases, an emergency guardianship order is issued. Requirements for an emergency guardianship order include:
- Incapacitation of the ward;
- A risk of harm if an appointment is not available; and
- There are no other available alternatives, for example, the ward did not leave a legal document directing the appointment of another individual.
A temporary guardianship agreement may be entered into between the minor’s parent and an individual granted temporary legal guardianship in order to make decisions related to the child such as:
- Health;
- Educational;
- Recreational; or
- Other decisions related to the child.
Do Temporary Guardianships Terminate Automatically?
Yes, a guardianship will terminate automatically in some cases. For example, if the ward passes away. A guardianship can also terminate when the child reaches the age of majority.
For cases involving an adult ward, the adult guardianship may terminated in the following circumstances:
- The assets being managed by the guardian are exhausted;
- The guardian petitions the court to resign; or
- The court determines the guardianship is no longer necessary.
How Can I Be Named a Legal Guardian?
In order to be named a legal guardian, an individual begins by petitioning the court. The individual must show that the person requires a legal guardian. The court will require evidence of the claims asserted in the petition for guardianship. A court hearing may occur as a result of the petition. The ward as well as other witnesses will have the opportunity to challenge or affirm the statements made in the petition for guardianship.
It is possible to obtain temporary guardianship without court intervention, if an agreement is reached. A guardianship agreement may be entered into to transfer the legal responsibility and care of the minor child to another party.
How Long Do Temporary Guardianships Last?
How long a temporary guardianship lasts will be determined by state statutes and the circumstances of the case. If a temporary guardianship order does expire, the court may extend the order. Orders may be extended for short periods of time or for long-term periods, depending on what the court deems necessary.
In addition, a living will or a power of attorney may set the time period for the duration of a guardianship. A court may always change this time period if necessary.
It is important to note that a temporary guardianship, similar to a permanent guardianship, will last as long as the court deems necessary to protect the ward or accomplish a specific purpose. An individual may petition the court to terminate the guardianship if they feel the order for guardianship is no longer relevant.
Should I Consider Awarding Temporary Guardianship?
A parent can decide to award temporary guardianship to another individual if they believe they need a period of time to remedy a condition, such as entering a drug rehabilitation program. Questions to consider prior to entering into a temporary guardianship include:
- Will the issue be cured in 6 months or less?
- How old is the minor child?
- Is the child’s other parent deceased?
It is important to consult with a co-parent or an expert in the area to determine if temporary guardianship is a good solution.
How Do You Get Your Child Back From Temporary Guardianship?
In a temporary guardianship situation, the parents retail legal rights to the minor child. A guardianship must be terminated by the court. Terminating a guardianship may be accomplished in different ways. The guardian can petition the court to resign from their guardianship and return custody to the parent.
The parent may also petition the court to terminate the guardianship. It is important to note that the court will likely require evidence supporting the petition. These include such things as completion of a drug rehabilitation program, evidence of a change in financial circumstances, or whatever circumstance caused the guardianship to be ordered.
Do I Need a Lawyer for Temporary Guardianship Matters?
Yes, it is important to have the assistance of an experienced guardianship attorney for any temporary guardianship matters. A lawyer can review the circumstances of your case and represent you during court proceedings, if necessary. Guardianship is extremely important for any family, especially the minor child and it is essential to have a lawyer protecting your rights.
