For minors or adults, the court may order the appointment of a legal guardian. The guardian is responsible for the care of the individual named as a “ward”. Guardianship may be awarded for a temporary period of time or long-term. The guardian can make decisions concerning the ward’s personal, financial, health or other matters as described in the court’s order.
A legal guardian will remain in that position until the circumstance that required the appointment is cured. Alternative, the position may end if the court determines the current guardian is failing to carry out the duties and responsibilities as outlined in the guardianship order.
A guardian can be named for a minor child when the court determines that the parents’ behavior — drug use, mental illness, neglect, sexual abuse — make them unfit or incapable of providing for the health and well-being of the child. Typically, in this case, a guardian is responsible for the child until they turn eighteen years of age.
A guardian of a child also can be named as a guardian ad litem to represent the child’s interest during a court proceeding, such as during a divorce or custody hearing. In the best interest of the child, the court will appoint a close relative as the minor child’s legal guardian, but a third-party can be named when necessary.
A guardian can also be named for adults when they are mentally incapacitated. These types of guardianships are more long-term as these conditions can last the lifetime of the adult.
When the court determines that the adult is incapacitated or incapable of managing their own affairs, it will outline the parameters of the guardian’s responsibilities in the guardianship order. The adult guardian can be responsible for their estate, property (including bank accounts and investment assets), and for medical care.
Temporary guardianship is most common when the court determines there is an emergency. The emergency event can be due to an accident or illness that deprives the ward of the opportunity to appoint their own representative.
The requirements for appointment of an emergency guardian are that the ward is incapacitated, there is a risk of harm if the appointment is not made and there are no other alternatives available (i.e. the ward did not leave a legal document directing the appointment of someone else).
Guardianships will terminate when the ward dies. As stated above, they also can terminate, in the case of a minor, when the child reaches legal age. In the case of an adult ward, the guardianship can terminate when the assets being managed by the guardian is exhausted, the guardian petitions the court to resign, or the court determines the guardianship is no longer necessary.
To be named a legal guardian, you start by petitioning the court. You must show that the person needs a legal guardian. The court will require evidence of the claims asserted in the petition establishing that the guardianship is warranted.
A court hearing is ordered in connection with the petition where the ward and other witnesses will have the opportunity to challenge or affirm the statements in the petition.
State statutes and the circumstances will dictate how long the court will keep a temporary guardianship in place. If the temporary guardianship order expires, the court can extend the order for additional short periods of time or for a longer-term depending whether the court finds cause to do so.
The bottom line is that a temporary guardianship, like a permanent guardianship, will last as long as the court determines it is necessary to protect the ward or to accomplish a specific purpose. You can petition the court to terminate a guardianship if you feel that that the order for guardianship is no longer relevant.
As a parent, you can decide to award temporary guardianship if you believe you will need a short period of time to cure whatever condition is motivating you to consider temporary guardianship.
Things you can ask yourself include: Will the condition be cured in six months or less? How old is the child? Is the other parent deceased? You can consult with your co-parent or an expert in your jurisdiction to determine if this makes sense for you.
Whether they are permanent or temporary, guardianship issues can be highly contested and stressful. If you are considering a guardianship arrangement or the court has ordered the appointment of a legal guardian, you may wish to consult a family law lawyer for advice.