A guardian is an individual appointed by a court to make legal decisions for individual’s unable to make decisions on their own. This typically refers to minors (under eighteen years of age), mentally disabled adults, and older individuals. The two primary kinds of guardianship, temporary and testamentary, can be confusing because of their similar names. However, they’re used for very different intentions.
This post details the difference between them in order to assist you in making an educated decision should you find yourself required to set one up for a loved one.
Some state regulations make provisions for temporary or limited guardianships. Temporary guardianships are usually granted by the court to achieve a particular purpose for a specific amount of time. Once the purpose is fulfilled, the guardianship is discontinued.
Testamentary guardianships are ones that are created should one or both parents pass away. In general, these are devised through a will in which parents specify their choice for who is going to be designated as guardian for their minor child or their disabled adult child that requires management over their person, estate, and/or both.
If the parents pass away while their child is still a minor or stays disabled, the court is going to establish the availability or suitability of the parents’ testamentary guardianship choice. If the chosen guardian is incapable, unwilling, or discovered to unfit to be a guardian, the court is going to designate a different guardian. In that situation, the state court is going to typically use the same legal process for designating guardians as when there isn’t a will to suggest a preference.
Temporary guardianships are separate from what some states refer to as a limited guardianship, in which stays until a court order discontinues it. This is also known as a limited conservatorship in many states, like California. In that state, limited conservatorships are only for adults with mental disabilities. This kind of limited guardianship is not “limited” by time like other limited types but is limited by the kinds of decisions the guardian is able to make legally for the person that requires care.
Don’t forget that guardianship laws are different in each state. It is important to examine your own state’s laws or speak with a local attorney to understand the requirements in which you reside.
One type of temporary guardianship is emergency guardianships. This guardianship is typically granted in which an emergency exists, and an individual is needed to give consent for the individual to receive prompt services. A temporary guardian is designated by the court to serve throughout the emergency only and for a limited period of time, as set forth through the court.
Usually, the individual being served by the temporary guardian is debilitated, disabled or has special requirements in some way. The court must establish that this person is unable to make the decisions due to minor age, mental ailment, addiction, crippling disease, or some other likewise limitation. The court must also determine that if a guardian isn’t designated, the individual is at risk of severe harm or possibly death. Subject to the state, the court may also need to establish that there’s no other individual available that can make emergency decisions on behalf of the incapacitated person.
The emergency guardianship order is usually granted for a short time, long enough to appropriately manage the emergency. For instance, in many states, the emergency guardian might only act for up to seventy-two hours. Following the emergency has concluded or subsided, the temporary guardian is required to file a report with the court describing the nature of the services they provided and detailing the result.
Prior to Seeking Legal Guardianship, Speak with an Attorney
Guardianship, if testamentary or temporary, can become pretty confusing. It is easy to misinterpret the definition of either one and the risks can be significant. If you have questions concerning guardianship laws or have worries particular to your situation, you might benefit from talking to a family law attorney near you.
Staff, F. L. (2021, December 13). Testamentary vs. Temporary Guardianship. Findlaw. Retrieved June 14, 2022, from https://www.findlaw.com/family/guardianship/testamentary-vs-temporary-guardianship.html
Arizona Family Law
Naming guardians in your will can be part of your estate plan. You may think you’re too young or don’t have enough money to justify the expense, but if you have children, you have priceless assets. There are many considerations when naming guardians for your kids. However, the process doesn’t have to be expensive or complicated.
There’s nothing better than the peace of mind you will have knowing you’ve protected your family at a time when they need it most. Let us help. Schedule a consultation or contact Ogborne Law, PLC of Arizona today.