How Guardianship Works in Hawaii for Children & Families

Updated

You can do a lot of interesting things in Hawaii. If you venture over to the post office, you can actually mail a coconut. If you wander down to the beach, you can learn to surf.

What happens if you go to the courthouse? It depends on what you are trying to accomplish. In Hawaii, you may go to the court house if you have questions or concerns about guardianship.

A guardian is someone who is responsible for overseeing and making decisions about another person’s healthcare, housing, and assets. They are appointed by the court. There are many different types of guardians.

Jump ahead to these sections:

Guardian considerations are important when discussing end-of-life planning. If you have minor children, you may need to choose a guardian for them in case anything happens to you. Adults can also need guardians, as their capabilities and needs change. 

What Types of Guardianship Exist in Hawaii?

In Hawaii, guardianship is either for a minor person (someone under 18 years of age) or an incapacitated person. We will discuss what incapacitated means in a later section. As you read, keep in mind that an adult is not automatically incapacitated just because the adult is older, has special needs, or has a developmental disability. 

The powers of a guardian can be either limited and unlimited. They are generally modified to fit the needs of the ward (the person who has the guardian). With regards to duration, a guardianship can be permanent, temporary, and emergency. 

Who Are the Default Guardians for Minor Children, Older Adults, or Adults With Special Needs in Hawaii?

Guardians are generally appointed by the court. However, “[t]he father and mother of an unmarried minor child are jointly the natural guardians of the child's person and property.” This means that the only “default” guardians are natural guardians.

What Forms Do You Need to File for Guardianship in Hawaii?

The forms that you need to file for guardianship in Hawaii differ depending on whether you are filing for guardianship of a minor or guardianship of an incapacitated person.

Guardianship of a minor

If you are filing for guardianship of a minor, then you will need to file the following forms:

  • Petition for appointment of a guardian
  • Notice of hearing
  • List of exhibits
  • Waiver of notice and consent to guardianship

If the court appoints a guardian and orders that the letters of guardianship be issued, then you would submit the following for the court’s signature after your hearing:

  • Order appointing guardian
  • Letters of guardianship

Guardianship of an incapacitated person

If you are filing for guardianship of an incapacitated person, then you will need to file the following forms:

  • Petition for appointment of a guardian of an incapacitated person
  • Notice of hearing
  • List of exhibits
  • Waiver of notice and consent to guardianship
  • Order appointing guardian

In addition to the above, the court may also require that you file a written report from a doctor or other qualified person regarding the proposed ward.

How Do You File for Guardianship in Hawaii?

The process for filing for guardianship in Hawaii will vary depending on whether you are filing for guardianship of a minor, guardianship of an incapacitated adult, or guardianship of a person with developmental disabilities. It will also be different if you are filing for a temporary or emergency guardianship.

Filing for guardianship in Hawaii will generally require the following steps: 

  • Gathering, filling out, and filing court forms including those listed above
  • Paying any necessary fees
  • Obtaining necessary signatures 
  • Proving notices to the appropriate persons
  • Attending the court hearing(s)

Every guardianship situation is unique. The above steps may not be all that a person has to complete if they are filing for guardianship in Hawaii. If you have questions about filing for guardianship in Hawaii, you should speak with an attorney. 

How Do You Assign a Guardian for a Minor Child in Hawaii?

In Hawaii, guardians are appointed by the court, they are not assigned. In some situations, it is possible for a parent to name a guardian for their minor child. This can be done by will or other written instrument. In Hawaii, a parent or guardian may delegate to another person power regarding a minor’s care, custody, and property. The delegation may not exceed one year. 

How Guardianship Works for Minor Children

In Hawaii, the court may appoint a guardian for a minor child if the court finds the guardianship is in the child’s best interest and any of the following is true: 

  • The parent's consent
  • All parental rights have been terminated
  • The parents are unwilling or unable to exercise their parental rights

In addition to natural guardians which were discussed in an earlier section, there are different types of guardians for minor children which will be discussed below. 

Permanent

A permanent guardian is used here to distinguish a from a temporary guardian which is discussed below. A guardianship that isn’t temporary has a longer duration. However, it will still terminate when any of the following occur:

  • The minor dies
  • The minor is adopted
  • The minor is emancipated
  • The minor turns 18 years old
  • A court order terminates the guardianship

Temporary

In some instances, it may be necessary to appoint a guardian for a minor child for a short period of time. In Hawaii, “the court may appoint a temporary guardian for a minor upon a showing that an immediate need exists and that the appointment would be in the best interest of the minor.”

The court may also appoint an emergency guardian for a minor child. This procedure is faster than the traditional guardianship process and is available where the court finds that following the traditional guardianship procedures “will likely result in substantial harm to a minor's health or safety and that no other person appears to have authority to act under the circumstances.” An emergency guardianship only lasts 30 days and is limited to the powers specified in the court order.

Testamentary 

A testamentary guardian is a guardian that a parent appoints for their minor child by will.

Unlimited 

Unless the powers are limited by the court, a guardian has the powers of a parent regarding the ward’s: 

  • Support
  • Care
  • Education
  • Health
  • Welfare

Limited

A court may limit the powers of a guardian. This creates limited guardianship.

How Guardianship Works for Older Adults

Age does not automatically mean that a guardianship is appropriate. However, as a person ages, or goes through other life changes, they may become incapacitated.

In Hawaii, a guardian may be appointed for an incapacitated adult. An incapacitated person is a person who “is unable to receive and evaluate information or make or communicate decisions to such an extent that the individual lacks the ability to meet essential requirements for physical health, safety, or self-care, even with appropriate and reasonably available technological assistance.”

Any of the following may appoint a guardian for an incapacitated person:

  • Parent
  • Spouse
  • Reciprocal beneficiary
  • The court

Permanent

A permanent guardian is used here to distinguish a from an emergency guardian which is discussed below. A guardianship of an incapacitated adult terminates when either of the following occurs:

  • The ward dies
  • A court order terminates the guardianship

Emergency

In some instances, it may be necessary to appoint a guardian for an incapacitated adult for a short period of time. In Hawaii, the court may appoint an emergency guardian if the court finds that following traditional guardianship procedures “will likely result in substantial harm to the respondent's health, safety, or welfare.”

The emergency guardianship is limited to the powers specified in the court order and can last no longer than 90 days.

Testamentary 

A testamentary guardian is a guardian that a person appoints in a will. In Hawaii, an individual “may appoint a guardian for the individual's spouse or reciprocal beneficiary who the appointing spouse or reciprocal beneficiary believes is an incapacitated person.”

Unlimited 

Unless the powers are limited by the court, a guardian shall make decisions regarding the ward’s: 

  • Support
  • Care
  • Education
  • Health
  • Welfare

When making decisions for the ward, the guardian “shall consider the expressed desires and personal values of the ward to the extent known to the guardian.” Additionally, the guardian shall encourage the ward to participate in the decision making process and to act on their own behalf. 

Limited

A person’s independence is valued. Thus, an unlimited guardianship is not the default guardianship in Hawaii. In Hawaii, the court “shall grant to a guardian only those powers necessitated by the ward's limitations and demonstrated needs and make appointive and other orders that will encourage the development of the ward's maximum self-reliance and independence.”  

How Guardianship Works for Adults With Developmental Disabilities or Special Needs

An adult with developmental disabilities or special needs does not automatically need a guardian. These individuals have rights just like every adult has rights in Hawaii.

As discussed in the previous section, a guardian may be appointed for an incapacitated adult. An incapacitated person is a person who “is unable to receive and evaluate information or make or communicate decisions to such an extent that the individual lacks the ability to meet essential requirements for physical health, safety, or self-care, even with appropriate and reasonably available technological assistance.”

Petitioners should explore alternatives to guardianship when considering guardianship for an adult. Depending on the adult’s needs, these alternatives may be better suited to the adult. Additionally, they may be less restrictive and less time-consuming/expensive than a guardianship. 

If you do decide to pursue guardianship for an adult with developmental disabilities or special needs in Hawaii, the types of guardianship include those discussed in the above section for incapacitated adults. The types of guardianship include: permanent, emergency, testamentary, unlimited, and limited.

Frequently Asked Questions: Guardianship in Hawaii

Asking questions is often the best way to understand a confusing or unfamiliar topic. We want you to have a basic understanding of guardianship in Hawaii. Here, we will answer frequently asked questions about guardianship in Hawaii. 

How long is temporary guardianship in Hawaii?

In Hawaii, the duration of the temporary guardianship for a minor child cannot exceed 12 months.

What’s the difference between guardianship, conservatorship, and custody in Hawaii?

A guardianship and conservatorship are different based on their scope of responsibilities and power. In Hawaii, a conservator is a person appointed by the court to administer the property of another. A guardian is a person appointed by the court to make decisions regarding the ward. 

Custody is generally used to refer to the legally established relationship between parents and their children. There are two types of custody: legal and physical. Legal custody is the right of the parent to make decisions about the child’s health, education, and welfare. Physical custody refers to where the child resides.

Custody and guardianship share a lot of similarities. Both custody and guardianship “carry with them the privileges and obligations of decision-making and the daily care of the child; the custody decision and the guardianship decision both determine the primary residence of the child.”

Can you get guardianship without going to court in Hawaii?

With the exception of natural guardians, guardians are court appointed and therefore you cannot get guardianship without going to court in Hawaii. When someone other than the court appoints a guardian, they must still go through the court to finalize the guardianship.

Explore Your Options

Guardianship is one of many options available when looking out for you and your loved ones. If you are considering a guardianship, then you have a responsibility to explore your options.

What are your options? That depends on where you live and for whom you are considering a guardianship. Your options for a minor child will differ from your options for an older adult or an adult with developmental disabilities or special needs. 

Your options will also change over time. Explore your options for where you are in life now and continue to explore your options as your life changes. 

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