Temporary Guardianship Agreement

Introduction to the Temporary Guardianship Agreement

A temporary guardianship agreement is typically entered into between parents and a third party who should mandatorily be an adult for the purpose of placing their child under the latter’s protection. It is different from a temporary custody agreement, as a temporary custody agreement is generally entered following a lawsuit, whereas a temporary guardianship agreement is a mutual arrangement. A legal guardian is typically appointed for a certain period of time. The temporary guardianship ends after the need ends. The guardian may be authrorised to make decisions for the ward.

Parties Involved in the Temporary Guardianship Agreement

Following parties are involved in a temporary guardianship Agreement:

Parents: The parents of the child would be a party to the agreement.
Legal guardian: The legal guardian who has been temporarily appointed should also be a party to the agreement.

Purpose of the Temporary Guardianship Agreement

To place children in a temporary guardianship of a responsible adult.
Gives parents a leeway to take holidays with an assurance that their children will be taken care of.
Another reason for temporary guardianship is the financial difficulties faced by parents.
Sometimes, single parents who are unable to handle their children on their own, also resort to temporary guardianship.
Sometimes, the parent is not in a very mentally sound position, and hence, a temporary guardian is required for the child.
If the parent is in prison, then to a temporary guardian is required.

Contents of the Temporary Guardianship Agreement

A guardianship agreement is typically structured as a temporary guardianship form. It contains the following details:

Name of the parent: The name of the parents who are putting their child in guardianship should be included in the agreement.
Name of the child: The name of the child to be put under guardianship should also be included.
Child’s birth date: The child who is to be put in guardianship’s birth date and year should be mentioned.
Contact information of temporary guardians: Contact information of the temporary guardians should also be provided in the agreement. Such contact information should include phone numbers and address.
Statement of consent: the parents should attach a statement of consent along with the temporary guardianship form. This statement should confirm that the parents have the legal custody of the child or children who are sought to put under temporary guardianship.
Term: The temporary guardianship form should specify the term of the temporary guardianship. Ideally, the commencement and end date should be mentioned.
Authorization for emergency events: The parents should authorize the legal guardian appointed to provide any emergency medical care which the child may require.
Authorisation for decision making: Any emergency decisions which may be required to be taken pertaining to the child should be duly authorized by the parents in favor of the appointed legal guardian.
Permitted actions: A temporary legal guardianship agreement should lay down all the actions a legal guardian is permitted to enter into.
Dispute resolution: A temporary legal guardianship agreement should have an effective dispute resolution clause.

How to Draft Temporary Guardianship Agreements?

Following important points are to be considered while drafting a temporary legal guardianship agreement:

Choosing a temporary legal guardian: A temporary legal guardian is someone under whose care and protection the child is placed for a certain period of time. It is essential that such a guardian is chosen with the utmost care and precaution. Typically temporary guardianship letter for grandparents is preferred because no one can provide better care to a child than grandparents. However, it is always advised that one first talks to the prospective temporary legal guardian before putting their name down in the temporary legal guardianship agreement.
Purpose of the temporary guardianship: It is very important that the temporary legal guardianship agreement explains the purpose behind the execution of such an agreement. The reasons can be wide and myriad is ranging from a temporary absence owing to official tour to divorce proceedings and in certain cases, even physical or mental illness.
Permissions and authorisations: As the parents are placing their child under the care and protection of a third party, it is essential that they list out all the things a guardian is allowed to do and the prohibitions placed on them vis-à-vis the child.
Any special conditions such as allergies or any medical condition should be made known to the guardian being appointed.
The terms of the agreement should be put in the contract very specifically. The start and end dates should be clearly reflected.
Nature of agreement: It should be amply clarified and stated that this only a temporary arrangement.
Breach: Any departure from the agreement should be characterized as a breach, and a suit for damages should lie, in the event any action is done, which is not in the interest of the child.

Negotiation Strategies

Following negotiation strategies to be kept in mind while entering into a temporary legal guardianship agreement

Make the authorisations very specific in nature.
The term should be kept to a minimum.

Benefits and Drawbacks of Temporary Guardianship Agreements

Benefits:

Children get taken care of: Even in the absence of their parents, children are not left high and dry. They are cared for by a trusted third party. Temporary guardianship of minors is important as it gives them security and assurance. It also provides security and assurance to the parents that in their absence, there are people who can take care of their children.
Guardianship without court: Typically, a temporary guardianship agreement places full powers in the hands of the parents and allows them to choose the guardian with minimum or no intervention from the court.
Transparency: Participation of the parents keeps the guardianship transparent and better monitored.

Drawbacks :

Enforceability: Despite having a written agreement in place, sometimes, it becomes difficult to enforce such agreement, especially if the person against whom you seek to enforce is your own kith and kin. For instance, if the child is left with his grandparents, and they do not take proper care, parents might not feel comfortable in enforcing the agreement.
Lack of options: Sometimes, despite the consent and authorization of parents being there, the consent might be mired in a lack of options. The fact that parents are getting divorced or a single parent cannot take care of their child. These reasons do not leave them with many options but to give the child to a temporary guardian.
Difficulty in monitoring: A temporary legal guardianship agreement is difficult to monitor. Especially because the parents are not present, and hence this makes supervision difficult. In such cases, sometimes, the aid of the court is taken. This may also make matters more complicated and costly.
Lack of experience: Sometimes, the people who are appointed as a temporary legal guardian does not have the requisite experience in handling minors. They might not understand the needs and interests of children that well. Moreover, as this is only for a temporary period, a lot of guardians may not take adequate interest in the welfare of the child.

[Also Read: Nanny Contract]

What Happens in Case of Violation?

Violation of a temporary guardianship agreement occurs when

the temporary guardian completely disregards the interest of the child
lets someone else who has not been authorized by the parents take care of the child
abuses the child in any manner or
expressly neglects or goes against the authorisations of the parents.

In such a case the following remedies may be sought:

Dissolution of temporary guardianship: As this agreement is structured as a temporary guardianship form, the method of dissolution should ideally be appended to it as a separate document. It should be clearly mentioned that any breach whatsoever of the terms and conditions contained in the agreement warrants a dissolution.
Police complaint: Disregarding the interests of a child, is also an offense and should be treated as such. Hence, the parents may even complain to the police that their child’s interests were harmed.
Court intervention: A plea can also be filed in the court to end the temporary guardianship and appoint some other guardian whom the court has verified(1).

The Temporary guardianship agreement is an effective way to address the concerns of parents who, due to whatsoever reason, will not be available for their children for a short period of time. By choosing the temporary guardian, parents too ensure that their kids are in safe hands. However, entering into an agreement helps the parents to remain assured that they can get their rights enforced in the event of any violation.