A Closer Look at Temporary Guardianship
Every child is entitled to a safe and loving home. However, due to unforeseen circumstances, some children find themselves in need of care other than that provided by their parents. These circumstances may include the incarceration or deportation of a parent, the addiction of a parent to drugs or alcohol, or the inability of a parent to care for a child as the result of illness or injury. Unfortunately, no caring relative or responsible family member may be available to take care of the child in such cases. In these circumstances, a temporary guardianship may be desired.
A temporary legal guardianship provides a responsible person the ability to make decisions regarding a child in the place of the natural parent or parents of the child who cannot care for them. The primary purpose of a temporary guardianship is to allow the proposed guardian to assume the right and obligation to care for a child for a short period of time after the death, incarceration or hospitalization of the natural parent or parents or other similar showing. Moreover, the parent or parents or proposed guardian must bring a petition to court requesting that a legal guardian be appointed to care for the child . Based on the information presented by the parent, the proposed guardian, and any other relevant evidence, the court may appoint the proposed guardian to be the child’s legal guardian.
In the state of California, a relative relative who is 12 years or older and is in good legal standing can be granted the status of the child’s temporary guardian. A non-relative over the age of 18 who is in good legal standing or has a prior relationship with the child can also be granted such status. If the proposed guardian is a parent of the child, he or she can be appointed a temporary legal guardian and be given decision-making authority for the child.
The temporary guardianship has its benefits for everyone involved in the case. For the natural parent(s) of the child, getting a temporary legal guardianship may allow them to have peace of mind when they are no longer able to care for the child themselves. For the proposed guardian, the award of temporary legal guardianship allows them to make important decisions on the child’s behalf. Finally, for the child, a legal guardian provides them with some sense of stability and security during a difficult period of their life.
Who Qualifies for Temporary Guardianship
Eligibility for Temporary Legal Guardianship
In general, any person over the age of 18 in California may become a temporary guardian of the person or estate of another. The California Probate Code Section 2400 specifically states the eligibility requirements to be appointed temporary guardian:
Except as provided in Section 2202, the following persons may be appointed as guardian of the person:
(a) An individual either who is an ancestor or descendant of the minor or who is a sibling of the minor or who is an aunt, uncle, niece, or nephew of the minor.
(b) Any person who, for more than one year, has had the care and custody of the minor or who presented at the hearing an affidavit or declaration under penalty of perjury, pursuant to Section 1447, stating that he or she has provided for the care and custody of the minor.
(c) The spouse of the minor. [Note: This includes a registered domestic partner.]
(d) Any person who is not a minor and who is not a person described by subdivision (a), (b), or (c).
(e) Any institution authorized by law to act as guardian of the person of minors.
(f) Any public agency authorized by law to act as guardian of the person of minors.
How to Apply for Temporary Guardianship
To apply for a temporary legal guardianship, the filing party must prepare a Petition for Appointment of Temporary Guardian (Form GC-1101). A Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act (Form FL-105) must also be attached.
The petition must be filed with the court, and in counties or court districts where the local rules require an Ex Parte Application to be signed by the judge before application is made, you must first file for an Ex Parte Application to Receive Temporary Custody of the Child (Children’s Protective Services should fill out Form FL-355).
The ex parte application is heard first, and if granted, an ex parte order allowing custody will be signed. If the child is with the person requesting custody the court may direct that the temporary guardianship order be served on any other person having physical custody of the child. If the child is not with the person requesting custody, the temporary order will not be served on anyone else. Typically, if the judge grants the order, the mother or father will be given temporary visitation and the right to have the child returned to them upon proper petition filed with the court, unless granted temporary custody by the court.
Duration and Restrictions on Temporary Guardianship
In California, a temporary guardianship generally lasts until the court has ruled on the appointment of a general guardian. Once the probate court has considered all the evidence and decided on the appointment of a general guardian, the temporary guardianship terminates automatically. If the judge, however, denies the appointment of a general guardian, the temporary guardianship will also terminate. Before the temporary guardianship automatically ends, California law permits an extension for good cause. In the case of a temporary guardianship of the estate, the extension can be for a period up to six months. In the case of a temporary guardianship of the person, the extension can be for a period not to exceed 30 days. The extension is not automatic and requires the filing of judicial council form FL-335 which must be served on the parties at least five days before the hearing. A similar form FL-585 can be used for a temporary guardianship of the estate. If a temporary guardian needs to continue in that role after the expiration of the temporary order, a petition must be filed with the court to establish a general guardianship. The petition may request the extension of the temporary guardianship until the hearing on the petition has taken place. Typically, the petitioner will have that extension. A typical case might involve a young adult with a developmental disability who lacks the capacity to give medical consent. A parent might petition for temporary medical consent to be granted to himself until such time that a general guardianship might be established. If the parent requires a temporary extension of the temporary guardianship, it can be for a maximum of 30 days. If the parent can overcome the more onerous burden of proving need for a general guardianship, he can continue acting in the role of guardian of the person for the duration of the general guardianship. In such a case, the statutory limitation of the temporary guardianship would be disregarded as impractical and cumbersome.
Rights and Duties of a Temporary Guardian
In California, a temporary guardian or conservator is an individual who is appointed for a limited duration to care for a minor child or an adult who is considered incapacitated. The role of a temporary guardian is to provide for the lead caregiver responsibility in situations where immediate action is necessary to protect or care for an individual, such as in the event of a medical crisis, parent/caregiver incapacity, or some other emergency situation.
The rights and responsibilities within this role are significant, requiring detailed attention to a broad range of individual and household needs. Key areas of responsibility involve arrangements for basic necessities such as food, clothing, shelter, and healthcare for the individual or children who are in the temporary guardian’s care. This includes overseeing day-to-day activities, as well as making major decisions about education, medical treatment, and other important life matters on behalf of the individual(s) to whom they have been appointed.
Basic financial responsibilities also apply, such as tracking expenditures for the benefit of the person with a disability or children in temporary guardianship. A temporary guardian of a child, for example, must provide detailed accounting and reporting on the use of all benefits and/or assets intended for the benefit of the ward or child. Financial duties and rights are broad, but honor and protect the interests of the parties appointed to the temporary guardianship.
For example , the temporary guardian may expend the funds received under a Social Security or other benefits program for the direct benefit of the minor child or adult incapacitated person, or they may utilize the funds to pay the appropriate expenses as they are incurred. However, the appointed guardian does not have the right to access the beneficiary funds to pay unrelated personal expenses or other debts.
The ultimate goal of the temporary guardianship arrangement is to safeguard and protect the short-term best interests of the individual in care. It is important that the person named be trustworthy, honest, and reliable, with demonstrated ability to carry out their legal obligations. Appointing someone to a temporary guardianship role is a significant step, requiring careful attention to applicable laws and regulations. The process for making a temporary guardianship or conservatorship official includes filing of legal documents with the probate court and making required disclosures regarding the proposed appointee’s background and fitness for the role.
Terminology for guardians and conservators varies by state, but technical terms used to identify the parties and roles involved do not change the underlying responsibilities and duties. Temporary guardianship is intended for the protection of individuals who cannot care for themselves, so careful consideration must be given to matters of appointments, substitutive provisions, and oversight authority.
Ending a Temporary Guardianship
In California, the procedure for terminating temporary legal guardianship is set forth in Probate Code Section 875. Unlike the initial guardianship application process, termination of temporary guardianship does not require the giving of notice to family or extended family members of the child. This is mainly because the term of temporary guardianship lasts only 15 days from the date it is ordered by the Court, and upon expiration, the temporary guardianship is finished, unless the judge extends it for an additional 15 days or issues an order having the effect of a final Order for legal guardianship, making permanent the temporary guardianship.
The guardianship must terminate in one of two ways:
i. The temporary guardian shall file a petition for probate (A) for appointment of a temporary guardian of the person or estate, (B) for confirmation of the appointment of the temporary guardian of the person or estate, or (C) for both a temporary guardian of the person and estate; (ii) notice of hearing on the petition has been given as provided in Section 1020 to all persons entitled to receive notice of a petition for appointment of a guardian of the person or estate; and (iii) letters of temporary guardianship have been issued;
or
ii. Upon expiration of the temporary guardianship pursuant to the temporary guardianship order or other law.
When to Contact an Attorney
When issues surrounding temporary guardianship become complex, the involvement of a legal professional may be necessary. For instance, while obtaining a temporary guardianship can be a relatively straightforward process for most families, there are several situations in which you may need to involve an attorney:
A professional can help you decide whether seeking temporary guardianship is your best option . In addition to helping you file your petition and represent you in court, a lawyer can assist in many other ways, such as answering your questions, making sense of confusing legal terminology, filling out complicated forms and gathering vital documentation.
Unlike probating a will, filing a petition for temporary guardianship is a somewhat informal process in California. Although family law courts in Los Angeles and other California counties can have a great deal of leeway over the process, your success largely hinges on the circumstances. It’s best to consult a lawyer to determine whether the process is right for you.