Guardianship refers to a legal situation where someone is appointed to handle important life decisions about another person. This can include decisions regarding medical treatment, finances, housing, and other important personal decisions. This is a common situation for minors without parents and disabled or elderly adults.
There are two types of guardianship that you may encounter. These are testamentary guardianship and temporary guardianship. When dealing with a guardianship, it is important to know the similarities and differences between these two types. It is also important to know the process for effecting legally binding guardianships, whether testamentary or temporary.
What is Testamentary Guardianship?
Testamentary guardianship refers to guardianship arrangements created by someone’s will. The terms of the will go into effect when that person dies. The will can dictate who will be the legal guardian of a minor child or disabled adult that the person was caring for while they were alive.
By way of example, say someone dies who was a mother to a five year old child. The child’s father had already passed away as well. If the mother created a will that discussed who would be the child’s legal guardian, then that is who the court should appoint to care for the child until they reach the state’s age of majority. This is generally 18 years old.
Keep in mind that the will must be valid for a guardianship clause to be enforced. What constitutes a valid will depends on your state’s law. The person creating the will must also have been of sound mind and body when they signed the will in order to make it effective.
In the situation noted above, after the mother died the probate court would look at her will to determine who she wanted to be appointed as her child’s legal guardian. This needs to be clearly articulated in the will, and some people will also list alternate guardians in case something happens to the first person they chose.
However, just because a guardian is appointed in a will this does not automatically mean they will get legal guardianship rights. If someone is appointed as a guardian through testamentary guardianship laws, they will still need to qualify under state law. Generally, to be an appropriate guardian the person will need to meet several important requirements including not having a criminal record, having sound health, and being financially able to carry out the legal responsibilities that go along with being the minor or disabled person’s guardian.
What is Temporary Guardianship?
A temporary guardianship is different from a testamentary guardianship mainly because it usually lasts 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, like caring for someone who becomes very ill. Once the purpose is no longer present, i.e. the ill person recovers, then the court will terminate the guardianship.
Additionally, a guardianship that is supposed to be for a longer time period may terminate 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 medical appointments then the court could terminate the guardianship, making it only temporary in nature. Fulfilling the responsibilities as a person’s legal guardian is extremely important.
How are Testamentary and Temporary Guardianship Arrangements Similar and Overlap?
Even though they are created differently and often last for different periods of time, both temporary and testamentary guardianships do have some similarities. For example, the duties and responsibilities can be the same regardless of what category the guardian falls under. If someone is tasked with caring for a minor, they will need to perform the same tasks like caring for the child financially and making important health decisions on their behalf regardless of what guardianship category that they fall into.
Another thing to remember is that a testamentary guardianship can also be temporary. For example, the will may dictate that guardianship should terminate after a specific period of time has passed.
However, keep in mind temporary guardians are usually not made by a will and are generally always by court order. This is especially true in instances viewed as emergency, like when dealing with an abused child or severely ill person. These things may even be viewed as being emergency guardianships that require immediate attention by the court to prevent further harm.
Do I Need a Lawyer to Help With an Issue About Guardianship?
Guardianship arrangements and agreements usually involve the help of a guardianship lawyer who can perform several beneficial functions. A lawyer can draft your will to make sure to include guardianship over someone that you care for, like your child.
A lawyer can also help handle any disputes over guardianship, whether testamentary or temporary. They will be familiar with your state’s laws and requirements and can advise you on how to proceed legally with these matters.