Testamentary and Temporary Guardianship

Where You Need a Lawyer:

(This may not be the same place you live)

At No Cost! 

 What Is the Difference Between Testamentary and Temporary Guardianships?

A guardianship is a legal relationship in which one person, the guardian, is appointed by a court to handle important life decisions about another person, the ward. This can include decisions regarding medical treatment, finances, housing, and other important personal matters. Guardianships are often set up for minors without parents or whose parents are unable to provide them with adequate care. Guardianships are also commonly used for the care of disabled adults.

Two special types of guardianships are testamentary guardianship and temporary guardianship. It is important to know the similarities and differences between these two types. It is also important to know the processes for creating legally valid guardianships, whether testamentary or temporary.

What Is a Testamentary Guardianship?

Testamentary guardianship is a guardianship created by parents in their will. The terms of the will go into effect in the event that one or both parents die. The will can identify whom the court should appoint as the legal guardian of the minor child. Or, the will may designate a legal guardian for a disabled adult for whom the parents cared while they were alive.

For example, the mother of a five-year-old child may die. The child’s father may already have passed away as well. If the mother created a will that specified who would be the child’s legal guardian, then that is the person whom the court would appoint to care for the child until the child reaches adulthood, usually at the age of 18.

Keep in mind that the will must be valid if a guardianship clause in it is to be enforced. What constitutes a valid will depends on state law. However, all states require that the person making the will must also have been of sound mind and body when they made it if it is to have legal effect.

As noted above, after the death of the mother, the probate court would look at her will to determine whom she wanted to be appointed as her child’s legal guardian. This needs to be clearly articulated in the will, and some people also list alternate guardians in case something happens to the first candidate to make them unavailable when the need for guardianship arises.

However, just because a guardian is appointed in a will does not automatically mean they will invariably be appointed as the guardian. If someone is appointed as a guardian in a will, they will still need to qualify under state law that applies to guardianships generally. In most states, to be appointed as a guardian, a person must meet several important requirements, including not having a criminal record, being of sound health, and being financially able to carry out the legal responsibilities that go along with being the guardian of a minor or disabled person.

What Is a Temporary Guardianship?

A temporary guardianship is different from a testamentary guardianship mainly because it is likely to last for a shorter period of time. A court will sometimes appoint a legal guardian for a period of time to carry out a specific purpose, usually to allow a child to live with a person other than their parents for a limited period of time. That person would need to become a legal guardian to have the legal authority to take care of the child’s day-to-day needs, especially their need for medical care.

In the event of a medical emergency, for example, they would need the legal authority to make medical decisions on behalf of the child. The guardian would also temporarily be in charge of managing the child’s education, finances, and any other pertinent issues related to the child’s upbringing and well-being.

A person who is a widow or widower or has sole custody of a minor child might want to establish a temporary legal guardianship in the event they will be temporarily unable to care for or make decisions concerning their child.

Different states have different requirements for setting up a temporary guardianship for a child. In most states, the person who wants to set up a temporary guardianship for a minor child needs to complete a temporary guardianship agreement form and have it notarized. If not, the person needs to write a letter that states who is being appointed as the guardian and how long the guardianship should last. Then, notarizing the letter ensures that the child’s guardian will be able to secure prompt medical treatment or make other important decisions for the child in the absence of their parent.

Depending on the law of the state the person lives in, they may or may not need to file it with a court or city, county, or state agency. Both the person who sets up the guardianship and the guardian should keep a notarized copy in their possession.

The law differs in each state. So it would be helpful to consult a local guardianship lawyer about the procedures and requirements for setting up a temporary guardianship in the state in which this is to be done.

Of course, any type of guardianship that is supposed to be for a long period of time may be terminated, if the court decides it is not working out. For example, if someone is taking care of a disabled adult but fails to take them to necessary medical appointments, the court could terminate the guardianship, making it only temporary in nature. Or the court might appoint a new and different guardian. In this sense, any guardianship might be considered temporary under certain circumstances.

How Are Testamentary and Temporary Guardianships Similar?

Even though they are created differently and often last for different periods of time, temporary and testamentary guardianships have some similarities. For example, the duties and responsibilities can be the same regardless of whether the guardian has been appointed as a temporary or testamentary guardian. If someone is tasked with caring for a minor, they need to perform the same tasks such as caring for the child financially and making important health care decisions on their behalf regardless of what guardianship category that they fall into.

A temporary guardianship usually lasts only for a specified, limited period of time, but a testamentary guardianship can also be temporary. For example, a will may dictate that a guardianship should terminate after a specific period of time has passed. In any event, unless the child is expected to remain disabled into adulthood and continue to need care for that reason, the guardianship terminates when the child turns 18.

Generally, however, temporary guardianships are not made by a will, but rather by court order. This is especially true in emergency circumstances, such as when dealing with an abused child or a person who unexpectedly becomes severely ill. So a temporary guardianship may often be viewed as an emergency guardianship that requires immediate attention from the court.

Do I Need a Lawyer for Help With a Guardianship Issue?

Guardianship arrangements usually require the help of a guardianship lawyer. A lawyer can draft a legally valid will for you that includes a guardianship provision for someone you parent and take care of, such as your minor child or a disabled adult child.

Your lawyer will also be familiar with your state’s laws and requirements for setting up a temporary guardianship and can advise you on how to proceed legally with that type of guardianship.

Law Library Disclaimer


16 people have successfully posted their cases

Find a Lawyer