As we face the increasing spread of COVID-19, many parents are considering the possible impact of the pandemic on our abilities to care for our children, and how best to prepare. In Massachusetts, there are several options to appoint an alternative guardian in the event that we are temporarily or permanently unable to care for minors due to COVID-19 (or any other debilitating illness), or in the event of our deaths. A person may become a guardian of a minor by appointment by parent or guardian or upon appointment by the court. (G.L. c. 190B, § 5-201). Although the courts are currently closed, if a guardianship is needed due to an emergency, the court will typically hold a telephonic hearing and may appoint a temporary guardian. A parent or guardian may also appoint a temporary agent to whom he or she delegates his or her powers regarding the care, custody or property of a minor, in which case the appointment may continue for a period not exceeding 60 days. (G.L. c. 190B, § 5-103).

1. In the case of a temporary delegation by a parent or guardian (sometimes referred to as an emergency guardianship proxy), the parent or guardian of a minor may appoint a temporary agent, and may delegate to such agent any power that the parent or guardian has regarding the care, custody or property of the minor, except the power to consent to marriage or adoption of the minor. The parent or guardian may only appoint a temporary agent if: (i) his or her parental rights have not been terminated; (ii) he or she has not signed a voluntary surrender; and (iii) the court has not ordered that the minor child be placed in the custody of a person other than the parent or guardian.

   The appointment of the temporary agent must be: (i) in writing; (ii) signed by, or at the direction of, the parent or guardian; and (iii) attested by at least 2 witnesses 18 years of age or older, neither of whom is the temporary agent. The appointment must also include the written acceptance of the temporary agent. The appointment may be revoked or amended by the appointing parent or guardian, in which case the revocation or amendment must be delivered to all interested persons. The court may limit or alter the authority of the temporary agent.

   Finally, it must be noted that a parent or guardian may not appoint a temporary agent of a minor if the minor has another living parent whose whereabouts are known and who is willing and able to provide care and custody for the minor, unless the non-appointing parent consents to the appointment in writing.

2. In the case of a court appointment of a guardian, the court may appoint a guardian for a minor if (i) the minor’s parents are deceased or incapacitated; (ii) the parents consent; (iii) the parents’ parental rights have been terminated; (iv) the parents have signed a voluntary surrender; or (v) the court finds the parents, jointly, or the surviving parent, to be unavailable or unfit to have custody.

   A guardian appointed by a parent (or current guardian) whose appointment has not been prevented or nullified has priority over any guardian who may be appointed by the court, but the court may proceed with another appointment upon a finding that the parental nominee has failed to accept the appointment within 30 days after notice of the guardianship proceeding.

   While a petition for appointment of a guardian is pending, if a minor has no guardian, and the court finds that following the procedures for court appointment of a guardian will likely result in substantial harm to the health, safety or welfare of the minor occurring prior to the return date, and no other person appears to have authority to act in the circumstances, on appropriate motion, the court may appoint a temporary guardian who may exercise those powers granted in the order. The appointment may be for a period of up to 90 days except that upon a finding of extraordinary circumstances set forth in its order, the court may order an appointment for a longer period to a date certain. The court may for good cause shown extend the appointment for additional 90-day periods.

3. In the case of a testamentary appointment of a guardian (G.L. c. 190B, § 5-202), a parent (or a current guardian) of a minor, by will or other writing signed by the parent (or current guardian) and by at least 2 witnesses, may appoint a guardian for any minor child the parent has or may have in the future, may revoke or amend the appointment, and may specify any desired limitations on the powers to be granted to the guardian. Generally, the appointment of a guardian becomes effective upon the first to occur of the following: (i) the appointing parent’s or guardian’s death; or (ii) an adjudication that the parent or guardian is an incapacitated person, or a written determination by a physician who has examined the parent or guardian that the parent or guardian is no longer able to care for the minor.

   Within 30 days after the appointment becomes effective, a guardian must: (i) file a notice of acceptance of appointment (including a copy of the will or other nominating instrument); and (ii) unless the appointment was previously confirmed by the court, petition the court for confirmation of the appointment. The petition for court confirmation is the same petition used (Form MPC 140) for a court-appointed guardian of a minor (overviewed above). 

   Prior to the court issuing letters of guardianship (in both testamentary and court-appointment circumstances, but not in the case of temporary delegations), the nominated guardian must file a bond with the court, conditioned upon faithful discharge of all duties of the office. A surety shall be required on the bond unless the court determines that it is in the best interest of the minor to waive the surety or to require additional sureties.

Although it is painful to contemplate having to entrust the care of children to someone else because we are ill or otherwise unable to care for them, it is important to know that legal mechanisms exist to ensure that children will be well-cared-for in our absence. Parents have the ability, through temporary delegations and testamentary dispositions in particular, to ensure that the person or persons whom they designate will ensure the care of our children.