Temporary and Testamentary Guardianship are the two primary forms of guardianship.
A legal guardian is someone appointed by the court to make legal decisions for another person who is not capable of making decisions for him or herself based on their status as a minor (under the age of 18), or severe physical or mental disability. In this article, you will find all you need to know to differentiate between Temporary vs. Testamentary Guardianship.
A testamentary guardian is a type of legal guardian established by a valid, written will document or living testament. In this document, the parent or legal guardian of a minor or an adult with a disability indicates who should become the legal guardian in the event of their death or incapacitation.
Upon the occurrence of a similar event, the court will examine the will document or living testament and appoint a new guardian according to the preference of the deceased or incapacitated. This person will still need to meet state requirements for guardianship, which generally include: a clean criminal record, sound mind, and health, financial resources sufficient to satisfy their legal responsibilities as a guardian.
A temporary or limited guardian is a person, usually appointed by the court, for a specific amount of time and sometimes to realize a particular purpose. When that purpose has been fully achieved, the guardian is no longer needed, and the guardianship is officially terminated.
In some states, another category exists called a Limited Guardian. This person is a court-appointed guardian that is limited to certain kinds of decisions that they can legally make for the person in their care. Remember that specific laws governing these types of guardianships vary by state.
An emergency guardian is a court-appointed guardian whose purpose is to act as a legal guardian in the event of an emergency in which the person receiving care needs someone to approve the receipt of immediate medical care or another kind of attention. This court-appointed temporary guardian may act only during an emergency.
The person on behalf of whom an emergency guardian acts has typically been disabled or incapacitated in some way. In this case, the court must conclude that they are unable to make decisions based on their status as a minor or other physical or mental limitation or disability. Also, the court must determine that with no legal guardian, the person receiving care is in danger of severe harm or death. The final step before appointing an emergency guardian is for the court to determine the absence of any existing legal guardians to make decisions for the incapacitated person.
Important to Remember
Testamentary and Temporary guardianships have some significant similarities and differences. For example, a testamentary guardianship can be temporary and is especially true if the will document indicates that the guardianship ends at a specific point in time. However, temporary guardianship is usually not testamentary.