Testamentary and Temporary Guardianship

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What is Testamentary Guardianship?

Testamentary guardianship is a type of guardianship arrangement where the instructions are contained in a valid will document.  With a testamentary guardianship, the parent of a minor child, or the caretaker of an adult with a disability, may indicate who should be the person’s guardian if they should become deceased. 

Upon the parent’s death, the court will examine the will document to determine the new guardian according to the preferences indicated in the will.  Persons who are appointed through testamentary guardianship laws still need to meet state laws regarding guardianship requirements.  These include: having a clear criminal record, being of sound health, and having the financial capability to fulfill their legal responsibilities as a guardian. 

What is Temporary Guardianship?

In comparison, a temporary guardianship is designed to last only for a specified period of time.  It is usually created for a specific purpose, and will terminate once that purpose is achieved. 

A common example of this is where a guardian is appointed for a person who has become severely ill or incapacitated.  This type of guardianship usually ends once the person has fully recovered. 

How are Testamentary and Temporary Guardianship Arrangements Related?

One thing to note is that a testamentary guardianship can also be temporary in nature.  This may be an option if the testamentary documents also specify that the guardianship should end a certain time. 

On the other hand, temporary guardianships aren’t always testamentary in nature.  In fact, most of the time, temporary guardianships are created by court order, especially if the situation is urgent and the child or adult needs a guardian right away.  The temporary guardian may then take legal responsibility for the person until a more permanent arrangement can be decided.  In very urgent situations, emergency guardianships can be issued for immediate assistance. 

Do I Need a Lawyer for Assistance With Guardianship Laws?

Guardianship arrangements and agreements typically require the assistance and guidance of a qualified family law attorney.  There are many documents, requirements, and some background checks associated with the process.  You should contact a lawyer if you need assistance with any type of guardianship arrangement.  Your attorney can help explain the laws in your area, and can represent you in court if a conflict arises over the arrangement. 

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Last Modified: 10-31-2012 02:34 PM PDT

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