January 1, 2005: 

Changes in Guardianship Laws


By: Bradley Coates
Special to the
Oahu Island News


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.