Section 5-204
(a)
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 pursuant to section 5–202 whose appointment has not been prevented or nullified under section 5–203 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.
(b)
While a petition for appointment of a guardian is pending, if a minor has no guardian, and the court finds that following the procedures of this article 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. A motion for appointment of a temporary guardian shall state the nature of the circumstances requiring appointment, the particular harm sought to be avoided, and the actions which will be necessary by the temporary guardian to avoid the occurrence of the harm. Such motion shall be accompanied by an affidavit containing facts supporting the statements and requests in the motion. The appointment of a temporary guardian for a minor may occur even though the conditions described in subsection (a) have not been established. 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.
(c)
If an appointed guardian is not effectively performing duties and the court further finds that the welfare of the minor requires immediate action, it may appoint, with or without notice, a special guardian for the minor having the powers of a general guardian, except as limited in the letters of appointment. The authority of any guardian previously appointed is suspended as long as a special guardian has authority. 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.
(d)
The petitioner shall give written notice 7 days prior to any hearing for the appointment of a temporary guardian in hand to the minor if 14 or more years of age and by delivery or by mail to all persons named in the petition for appointment of guardian. A certificate that such notice has been given, setting forth the names and addresses of those to whom notice has been given, shall be prima facie evidence thereof.
(e)
If the court determines that an immediate emergency situation exists which requires the immediate appointment of a temporary guardian, it may shorten or waive the notice requirements in whole or in part and grant the motion, provided, however, that prior notice shall be given to the minor, if the minor is 14 or more years of age, as the court may order and post-appointment notice of any appointment is given to the minor and those named in the petition for appointment of guardian stating further that any such person may move to vacate the order of the court or request that the court take any other appropriate action on the matter, and on said motion to vacate. The court shall hear said motion as a de novo matter, as expeditiously as possible. A certificate stating that such notice has been given shall be filed with the court within 7 days following the appointment. Upon failure to file such certificate the court may on its own motion vacate said order.
(f)
In the event that any person to whom notice is required is of parts unknown, such notice shall be delivered or mailed to that person's last known address, and the fact of such delivery or mailing shall be recited in the certificate of notice.
Comment
This section and §§ 5-205 through 5-207 following cover proceedings to secure a court appointed guardian of a minor. Sections 5-208 through 5-212 are applicable to all guardians of minors who derive authority from appointment by a parent or guardian or court appointment as contemplated in this Part. Nothing in this Article is intended to deal with the status of a so-called natural guardian, with the authority of a parent over a child, or with authority over a child or children that may be conferred by other state laws.
The court is not authorized to appoint a guardian for one for whom a parent has custodial rights or for one who has a guardian appointed by a parent or a guardian. Two purposes are served by this restriction. First, it prevents use of guardianship proceedings as a weapon or tactic in a squabble between parents concerning child custody, thereby forcing these disputes to marital proceedings. Second, it establishes that a guardian appointed by a parent or a guardian is as completely endowed with authority as a guardian as one appointed by court order. A guardian appointed by a parent or a guardian may be replaced by one appointed by the court following removal in proceedings under § 5-212. If a court-appointed guardian comes into existence before a parental nomination is discovered or implemented by acceptance, it will be necessary to terminate the authority of the court-appointed guardian in order to clear the way for the parental nominee. See § 5-201. In this connection, the second sentence of § 5-204(a) may be invoked in appropriate cases by the proponent of the parental or guardian nomination. This would occur in proceedings incident to an application to the court for an order correcting the original appointment. Alternatively, the nominee of a parent or guardian may urge removal of the court-appointed guardian on the ground that the best interest of the minor as contemplated in § 5-212 would be served by termination of the prior appointment.
Subsection (b) gives the court having jurisdiction of guardianship matters important power regarding the welfare of a minor in the form of authority to appoint a temporary guardian in cases of necessity. The authority permits appointment of a temporary guardian even though one or both parents have parental authority. It is to be noted, however, that the appointment of a temporary guardian must be preceded by notice and hearing. The authority might be particularly useful in a case where both parents have disappeared or simply departed without making adequate arrangements for their children. If the needs of minor children require the creation of guardianships before it is possible to prove the death of the parents, the subsection opens the way to appointment of one having parental authority for up to 90 days that does not require proof of the requirement of subsection (a) that “the parents are deceased or incapacitated, or the parents are unfit...”
Massachusetts comment
Subsection (a) is not inconsistent with G.L. c. 201, § 2. G.L. c. 201, § 14 authorizes the appointment of a temporary guardian of a minor as provided in subsection (b). However, the wording has limited such appointment to situations where the parents are deceased or not available. Subsection (b) limits the term of a temporary guardian to the 90 day initial limit with 90 day extensions provided by Probate Rule 29B.
Subsection (a) gives the Court new authority to terminate or suspend parental rights, but utilizes the same factors as for approval of adoption without consent.
Chapter 140 of the Acts of 2012 changed “over the age of 14 years” in subsection (d) to read “14 or more years of age”.