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January 1, 2005: Changes in Guardianship Laws
By:
Bradley Coates |
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On
January 1, 2005 Hawaii’s law on guardianships of minors, incapacitated
adults and their properties will be tossed out. Replacing it will be the
spanking-new Uniform Guardianship and Protective Proceedings Act, signed
into law on July 2 by Gov. Linda Lingle. Act 161 will likely result in the streamlining of the way
guardianships are set up and handled here in Hawaii and also bring us more
into uniformity with the way they are handled nationwide. It will allow
families an ability to appoint caretakers by power of attorney. It also has
the potential for creating major headaches (at least in the beginning), as
judges, attorneys, families, schools, doctors and the police all scramble to
interpret and adapt to it. Our practice often sees the need in family court for rapid and
emergency establishment of guardianship for the protection of minor children
and senior citizens. Family members may be fighting over who a “displaced
dad” will live with or what will happen to an orphaned child. Sometimes,
guardianship isn’t immediately needed but may be anticipated; for
instance, where the sole-surviving parent is known to be terminally ill. Act
161 sets out the new procedures for dealing with such situations. Under Act 161, a parent may appoint a guardian for their
existing or future children either by will or other written document. If the
appointing parent desires (anticipating being unable to care for the child
within the next two years), he/she may take the additional step of securing
court confirmation of the guardianship (and also terminate the rights of
others to object to the guardianship) in advance of actual need. The
guardianship would then become effective upon the parent’s death,
incapacitation or written doctor’s statement that the parent is no longer
able to care for the child. In a major new change, Act 161 would also allow a parent or
guardian of a minor to delegate to another person, via power of attorney,
for a period of up to one year, any power regarding the care, custody or
property of the minor or ward, excepting only the power to consent to the
child’s marriage or adoption. This procedure, which apparently would not require either a
court hearing or notice to the other parent or other family members, would,
for instance, assist grandparents in enrolling their grandchildren in school
and getting them medical care without need for formal appointment of a
guardian. That is good news. However,
as a family law attorney who has seen every kind of problem walk in the door
of my firm over the many years we have been practicing, trust me when I say
people can get very creative in finding ways to mess up legislative good
intent. I could tell you true family law stories which would raise the hairs
on the back of your neck. The odds are great with this new legislation that
judges, attorneys and police across the state are going to be seeing a lot
of potential abuses, as people battle over the control of their children and
their kupuna. What
if mom authorizes grandmother to take the child in for medical care in
another state? Then grandmother takes the child to a surgeon who botches the
operation — all without dad’s knowledge or consent? What
if one parent signs a power of attorney authorizing grandpa to lawfully take
the child out of Hawaii to state “A”, without formal advance notice to
the other parent; while the authorizing parent disappears in the opposite
direction to state “B”, or even out of the country? How then do you
track down the child? How long will that take? Will the police elsewhere
help or hinder you? What if they are not sure exactly which orders/documents
have control? While
the act does provide for redress in the courts by the other parent, the fact
is that the child may very well be on a plane and out of the court’s
jurisdiction before that happens. The aggrieved parent may then be stuck in
an emotional, financial, and legal quagmire in securing the child’s
return. Even
though the statute specifically provides that the appointment of a guardian
by a parent does not supercede the parental rights of either parent, when
push comes to shove, what is the poor police officer on the beat supposed to
do? While
obviously we don’t have room in this article to go into all of the
guardianship changes that take effect on New Year’s Day, and what they may
mean to you folks as residents, we will try to keep you advised of any
breaking news as it arises. Bradley
A. Coates, J.D., has been a practicing divorce attorney in Honolulu for over
25 years. He has been selected as Honolulu’s best divorce lawyer and is
the founder of Coates & Frey, Hawaii’s largest family law firm.
Coates wrote an award-winning book on the divorce process,
titled “Divorce with Decency: The Complete How-To Handbook and
Survivor’s Guide to the Legal, Emotional, Economic and Social Issues,”
which is now in its second edition. Also listen to Coates as the commentator
on KQMQ-93.1 FM’s “Topical Tuesdays Morning Drive Show”. This article contains only general information and readers should not take any actions based on the summarized information contained herein. Instead, appropriate experts should be consulted for each individual’s case and/or fact situation. Phone: 524-4854. Also visit the firm’s web-site at www.coatesandfrey.com.
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