A guardian is a person appointed by the court to make legal decisions for someone who's unable to make decisions for him or herself. This usually refers to a child (under the age of 18), but it could also refer to developmentally disabled adults and the elderly. The two main types of guardianship, testamentary and temporary, can be confused due to their similar names but they're used for very different purposes.
This article discusses the difference between testamentary vs. temporary guardianships in order to help you make an informed decision should you find yourself in need of setting one up for a loved one.
A testamentary guardianship is one that's created in the event that one or both parents pass away. Generally, these are created in a "will" where parents identify their preference for who would be appointed as guardian for their minor child or their adult child with a disability who requires supervision over their person, estate, or both.
If the parents pass on while the child is still a minor or remains disabled, the court will determine the availability or appropriateness of the parents' testamentary guardianship selection. If the selected guardian is unable, unwilling, or found unfit to be a guardian, the court will appoint a different guardian. In that case, courts will typically use the same state's legal procedure for appointing guardians as when there’s no will to indicate a preference.
Some state statutes provide for temporary or limited guardianships. Temporary guardianships are generally granted by the courts to achieve a specific purpose for a certain amount of time. Once the purpose is accomplished, the guardianship is terminated.
A temporary guardianship is different from what some states call a limited guardianship, which remains until a court order ends it. This is also called a limited conservatorship in some states, such as California. In California, limited conservatorships are only for adults with developmental disabilities. This type of limited guardianship isn’t “limited” by time like other limited guardianships, but is limited by the types of decisions the guardian is legally able to make for the person who needs care.
Keep in mind that guardianship laws vary by state.
One form of temporary guardianship is the emergency guardianship.This guardianship is generally granted where an emergency exists and someone is needed to give approval for the person to receive immediate services. A temporary guardian is appointed by the court to serve during the emergency only.
Generally, the person being served by the temporary guardian is disabled or incapacitated in some way. The court must determine that this person is unable to make the decisions because of minor age, mental disability, addiction, debilitating disease, or some other similar limitation. The court must generally also determine that if a guardian isn’t appointed, the person is at risk of serious harm or even death. Finally, the court must determine that there’s no other person available who can make the emergency decisions for the incapacitated person.
The emergency guardianship order is generally granted for a short period, long enough to properly handle the emergency. For example, in Ohio, the emergency guardian may only act for up to 72 hours. After the emergency has ended or subsided, the temporary guardian must file a report with the court detailing the nature of the services he or she provided and describing the outcome.
Before Seeking Legal Guardianship, Talk to an Attorney
Guardianship, whether testamentary or temporary, can become quite confusing. It is easy to misunderstand the definition of either one and the stakes can be enormous. If you have questions about guardianship laws or have concerns specific to your situation, you may benefit from speaking with a local family law attorney.