Temporary Guardianships – What They Are
Temporary guardianship is a legal arrangement established to provide for the care and supervision of a ward by a guardian for a limited period of time. Unlike permanent guardianship, which is intended to last as long as necessary, temporary guardianship arrangements are time-limited and often set up to handle specific needs or circumstances rather than provide permanent oversight. Temporary guardianship may be set up in emergency situations or pending further court action on the guardianship itself.
The most obvious example of temporary guardianship in the emergency context is emergency guardianship. Emergency guardianship arises when a person suddenly becomes incapable of caring for themselves or handling their own affairs. This includes individuals who have suffered an illness or injury that has impaired them to the point of needing assistance with their everyday life. The emergency guardianship allows for the protection of these individuals while long-term solutions are sought.
Temporary guardianship may also arise when a temporary solution is needed for special circumstances. For example , guardianship may be obtained by a parent when their child is out of state with another family member and the parent is concerned that the child’s other biological parent will try to formally legalize the child’s residence in their state and cut off the child’s ties to the parent. This type of temporary guardianship allows the parent to protect their rights as a parent and the rights of the child in the event that the other parent moves to legalize residence in their state.
How Temporary Guardianships without Going to Court Works
Sometimes during an emergency, a parent or legal guardian cannot properly care for a child. If the emergency is long-term, temporary guardianship is an option. Obtaining guardianship through the court system can be a long process that can take weeks or months. It can be time-consuming and excruciating to wait on the court. Fortunately, guardianship does not have to go through the courts, because you have the option of establishing it through a notarized document. However, this comes with its own complications. The child’s parent allows another family member or close friend to legally take care of and make decisions for the child. The parties do not have to go to court for this. The parent of the child must voluntarily hand over the rights of caring for the child. The parent can decline to give the permanent assignment but can allow temporary guardianship. Temporary guardianship can be established for up to two years without having to go to court. With a duty of care, the temporary guardian makes financial, health and legal decisions on behalf of the child. The parent and the temporary guardian establish guardianship rather than the court system. The parent and the temporary guardian create a notarized document that describes the limits of the guardianship. It details how long it will last and what decisions the guardian can make, such as medical or financial concerns. During the temporary guardianship, there are some important details that both the parent and the guardian need to understand: If the temporary guardian needs to step down from the position, they can do so with a written notice. If the temporary guardian continues to care for the child, the guardianship arrangement will end 30 days after the notice is given. A temporary guardianship without a court order can be converted into a long-term guardianship by going to the court and seeing a judge.
Advantages of Not Going Through the Court for Guardianship
By sidestepping court involvement in such instances, you can save time, reduce expenses, and enjoy a level of flexibility that simply isn’t possible when estate matters have to be handled by an appointed guardian. The following are just a few of the potential benefits of establishing temporary guardianship without the involvement of the courts: Ease and efficiency – In some cases, if you don’t bother to get the court involved, the original agent under the "durable" form of Power of Attorney (POA) may be just fine, at least for a period of time – especially in the case of an individual who is suffering from dementia or other cognitive issues. Speed – A temporary guardianship can be established nearly immediately, whereas petitioning the court – even with well-drafted pleadings – may take weeks. A court evaluation may also require several months. Cost – Even relatively straightforward guardianships can cost up to $4,000. Fast-tracking with a temporary POA can save many thousands of dollars in fees and costs. Some of these benefits will not be applicable in all cases, but they are important to keep in mind while evaluating your options when guardianship is necessary.
Risks and Challenges of Going Without the Court
While establishing a temporary guardianship arrangement without court oversight is possible, it is not without its potential risks and challenges. First and foremost, one of the most significant risks lies in the issue of legal recognition. Since these types of arrangements are not officially registered with the court or recognized by a legal authority, there’s always the possibility that someone, such as another family member or a third party, will challenge the arrangement and this could result in lengthy and costly legal conflicts. Another challenge is enforceability. Without the court’s involvement, enforcement can be more difficult and time-consuming, particularly when it comes to issues like medical treatment. As custodial rights are not granted by the court in these cases, a doctor may be reluctant to accept a temporary guardian’s directive over a child’s medical care for example. This could complicate situations in which a child experiences a medical emergency or needs treatment that must be consented to by the legal guardian. Additionally, there may be challenges related to the protection of all parties’ rights under the law. Guardians may have a harder time managing assets, real estate, and financial matters without the legal clarity that a court-sanctioned guardianship can provide. Finally, in many cases, these arrangements depend heavily on the relationship and mutual consent of the parties involved – if the relationship between the guardian and the child breaks down, the arrangement can become very difficult to navigate and unwind.
Crafting a Legal Agreement for Guardianship
A temporary guardianship agreement, if drafted correctly, may offer a short-term solution for parents who are seeking immediate help in meeting their child’s needs. The key to creating an enforceable temporary guardianship agreement is to specifically address a very basic point.
That point is the following: if at some point it becomes necessary to address the issue of a child’s daily care with a court, that point should be clearly identifiable in the document.
To revisit this point, assume that a temporary guardianship agreement has been created. The parents and those who have signed the guardianship agreement join together to sign a document creating a short-term guardianship for the child. This agreement may be perfect. It may carefully spell out each individual’s specific roles, responsibilities, and limitations. It may not even contain permutations upon permutations of details and exceptions.
Even so, there is one more thing that needs to occur before the document is enforceable . The document must say, as clearly as possible, the following:
"If any court determines at any time regarding the child the parents’ consent will not suffice to allow the temporary guardian to meet the child’s immediate needs, then the parents and other individuals who have signed this temporary guardianship appoint the temporary guardian to take responsibility for the child’s short-term care in their stead until the resolution of judicial proceedings."
Such provisions in a temporary guardianship agreement allow a court to see – more than anything else – that the document you have drafted for your child has been thought out in a careful, responsible manner. The adoption of a temporary guardianship agreement that includes such provisions allows the parties to look at the future with much less trepidation. It allows you to be proactive. It gives everyone in the family a goal to work toward that is hopefully one step closer: a permanent solution to this family’s period of crisis.
When You Can’t Do Without the Court
Although there are many instances when having a court step in to deal with a temporary guardianship situation may provide the most effective resolution for your family, when is court involvement unavoidable? The following are some examples:
Disputes Over Terms
Specific disagreements over the terms of guardianship or between different parties over who should be appointed guardian can escalate quickly and strongly, leading some parties to file an emergency petition to determine the best course of action for minor children.
Custody Challenges
It is never easy to have your spouse or ex spouse watch the children while you are away, and if that designated person’s parenting habits deviate significantly (whether intentionally or otherwise) from your own, it is possible the court will have to step in to determine what is in the best interest of the child in his or her absence.
Legal Action by Third Parties
Even a remote relative can step in and challenge a guardianship arrangement if he or she believes that they are better suited to care for minor children or over probate matters. Such a challenge may require mediation or court action before being resolved.
Some Real World Scenarios and Examples
Real-life examples and case studies exploring when temporary guardianship without court involvement worked well and when it faced challenges or limitations.
The solution of temporary guardianship without resorting to the courts is not without its share of real-life examples. An anecdote from a senior care center administrator in California tells us that a frequent concern is the unintentional usurpation of the right of a senior citizen to choose their living arrangements by adult children who refuse to allow them to stay in their home for safety reasons. "Unless we get a court order," she says, "we can’t move a pear for them." The scenario goes like this – let’s say that mom is living at home, and dad dies. She’s secure and content, but the kids throw a fit that she must go into a facility. They cut her off financially, and also refuse to help, so the nursing home has to take action. They cannot get a court order quickly enough to restore her financial footing, so they call on the three-day notice law, which says that if the person has been living at home, they cannot be moved without an agreement from the patient or a court order. The problem is then solved – sometimes.
A similar situation was reported by a Texas adult protective services case worker, who felt that it was unsafe for an elderly man to return home after a brief hospitalization. The courts would not issue emergency guardianship, so she told the family that if he went back home, he would be assessed as a danger to himself, and they would have to finance his care at a nursing facility, which happened to be in another state. Apparently the problem was resolved, but not without his family assistance, and after great distress by them.
We also find the example of Mary, the fifty-five year old daughter of a Mexican immigrant family. She lived at home with her parents until they became ill, forcing her to quit work to care for them. When they began falling ill frequently, she would use their funds to pay for additional assistance, knowing that when her parents died, she would inherit all their assets. One day, her father tried to abscond from the house, satisfactorily maintaining that he thought he needed to run to the grocery store. Nonetheless, Mary was found guilty of undue influence, and her brother secured her father’s assets for himself and his family.
Mary’s story, however, had a happy ending. Mary helped her father reorganize his assets to provide maximum benefit to his family, while keeping him safely in the family home until he passed away.
Expert Guidance and Resources
Guardianship without court supervision is rare, but that doesn’t mean it can be done without legal advice. We reached out to two legal experts to help you understand best practices for temporary guardianship without court involvement.
As Jean Bloom, a longtime family law attorney and the principal attorney at Gwen Nascimento & Associates in Massachusetts, explains, there are very few situations where temporary guardianship might be needed or appropriate without some type of court involvement. On the list of exceptions she lists, you may be surprised to learn that temporary guardianship may be appropriate if there’s an unexpected death in the family or an accident of the reader or primary caregiver that makes it impossible for the primary person to care for his or her children.
But it’s essential to note that, in Massachusetts, no one private citizen can grant guardianship over another private citizen without some sort of legal paperwork. "A private citizen cannot just say ‘Oh you have no one to take care of you. I’m temporarily going to be your guardian,’" says Bloom. In the cases where private citizens and judges can agree that guardianship without supervision is appropriate, a judge would need to sign off on the guardianship paperwork to finalize the process of granting temporary guardianship to a private citizen.
In many states, like Florida and California, the process of granting temporary or permanent powers of attorney or guardianship without court intervention is pretty straightforward, which leads some to make the leap and go for it. In reality, making the leap has very real consequences. According to Kelly E . Berg of the Family Wealth Estate & Elder Law, PC in Florida, things like temporary guardianship, powers of attorney, designations of healthcare surrogate and living wills are all considered advanced directives, meaning that these documents spell out how people want their property handled by an agent when they’re not capable of speaking for themselves. Due to the seriousness of these documents, usually all of these advanced directives should be witnessed by two uninterested parties or notarized at the time of signing. In some cases, these documents need to be recorded.
Berg notes, however, that not all states recognize the same rules. "Be aware that forms for powers of attorney and healthcare surrogate, even though very similar, vary from state to state." And states have different rules about when a guardian designation is valid and when it needs judicial approval. In these cases, it’s always better to err on the side of caution by getting legal assistance with the process.
The law firm of Sterling Hughes in Wisconsin agrees, noting that "You can always get guardianship with the court if your family member will pass away, and ask that the guardianship continue until the estate is settled, or indefinitely. This ensures that someone you trust is controlling her estate, medical treatment, and finances upon your incapacity. It’s much more difficult to undo a private guardianship once one has been established." In cases of a private guardianship, Wisconsin law doesn’t require a hearing or anyone to prove that the adult in question cannot exercise the right he or she is giving up. For this reason, attorneys also recommend that private guardianship be used for a very short period of time, and for very specific situations.
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