Guardians are persons appointed by the court to have “custody” of the individual or “ward” of the court under circumstances where such individuals are not competent to represent themselves in legal or other important matters. Guardians may be appointed for minors or adults on a temporary basis.
Temporary Guardianship for Minors
Temporary guardianships are generally designed to last no more than 6-months. If the subject of the guardianship is a minor, you will want one appointed in matters where the child is involved as a plaintiff in a civil lawsuit, if there is a custody dispute, or where the child has a physical or mental disability. A temporary guardian can be appointed immediately in many cases. and is generally called a guardian ad-litem.
A temporary guardianship expires after 60-days although it can be extended for an additional 60-days for “good cause” but only after a total of 90-days has passed since the initial appointment. If the temporary period is not long enough, then the guardianship becomes permanent. In filing for a temporary guardianship, you are required to also file for a permanent guardianship. The time involved in the appointment of a permanent guardian is about 2-months. It ends when the child reaches the age of 18, marries, or is emancipated.
Once you file the petition and required documentation, the court will review the petition and issue a minute order giving the time, place, and name of the judicial officer who will be presiding. A copy of the Notice of Hearing will be given to you for you to serve to anyone entitled to such notice at least 5 business days before the hearing for the temporary guardianship.
If the court permits you to have an emergency hearing without notice, notice is still given to the person who is the subject of the temporary or emergency guardianship by personal service within 72-hours after the court hearing. In the petition, you will have to explain how the ward will be harmed unless temporary guardianship without notice is not granted. This is a high standard and you will need to demonstrate that immediate and irreparable injury, loss or damage will result before a notice will be given.
A temporary guardian or guardian ad-litem may also be appointed under other circumstances where either parent is absent, including:
- You will be out of the country for an extended period of time
- You are suffering from a mental or physical disability that you are having treated abroad or you were declared incompetent to take care of your children
The ward resides with the guardian who has physical and legal custody of the ward or minor and who has the authority to make decisions that impact the ward’s welfare. The court may monitor the decisions of the guardian to ensure they are in the child’s best interest. However, if a reasonable and fit parent is available and objects to the guardianship, then the court will not grant it.
A guardian ad litem is an attorney appointed by the court to represent the interests of the child as to custody, physical placement, support, and visitation. These actions require an appointment if:
- The court has special concern for the future welfare of the children
- The legal custody or physical placement of the minor children is at issue
In cases where custody is contested and court-ordered mediation has failed, then the court will immediately appoint a guardian ad litem. It could also on its own, or on motions of either party, appoint a guardian ad litem earlier.
In some cases, a minor will need a permanent guardian named. It generally takes about 2-months from filing the petition to the appointment.
Temporary Guardianship for Adults
Similar to the appointment of a guardian for a minor, a guardian for an adult may be requested and granted if the adult is found incompetent or unable to make decisions about their personal care or finances. This can include medical care, support services, and living arrangements. Adult wards must be represented by an attorney when a guardianship petition is filed.
Incompetency means that the adult suffers from a physical or mental disability that prevents him or her from managing finances or meeting personal needs. A temporary guardianship could be appointed if the adult is suffering from substance abuse, a developmental disability, or mental illness. A petition for temporary guardianship must be accompanied by a medical report attesting to the disability or the physician must be made available by phone for the court to question.
There can be a guardian appointed for the person or for the estate, or one representing both. If for the estate, the guardian has authority to make decisions regarding the estate’s property such as real estate, bank accounts, and debt obligations. Any sale of assets will usually require court approval.
If acting as guardian for the person, responsibilities include determining:
- Where the adult will live and how they will live
- Medical treatment the adult will receive
- Education and counseling services
- Giving consent to release of confidential information
- Making end-of-life decisions
- Acting as representative payee
- Ensuring as much independence for adult to enjoy
- Reporting to the court
The same procedure for filing a petition for a temporary guardian for a minor applies to the appointment of a guardian for an adult, including an emergency appointment.
A temporary guardian is appointed for a limited time and the court order appointing the guardian must specify the particular authority or powers granted to the guardian.
A temporary guardian could be appointed for a single act or transaction. There may also be a standby guardian who will wait, or standby, and who has no power or authority unless the appointed guardian becomes unavailable. A temporary guardianship can become permanent after the 60-day period expires, though it can be extended for “good cause.”
Contact Us if you are considering a guardianship for a minor or adult, or if you have questions about the process.