West Virginia Temporary Guardianship Agreement

Introduction

Key Things to Know

1. 1

   The West Virginia instrument is the Power of Attorney to Delegate Parental or Legal Custodian Powers under W. Va. Code 49-8-3 and 49-8-4. The parent, guardian or legal custodian signs it, and the designee signs to accept the designation. The statutory form at 49-8-4(a) may be used, and for the nonprofit-assisted arrangements Article 8 covers, a power of attorney is legally sufficient under the article if its wording substantially complies with the form, it is properly completed and the signatures are acknowledged.

2. 2

   The delegation may not exceed one year, and the form states the beginning and ending dates. When it is terminated, expires or is revoked, the child must be returned to the parent, guardian or legal custodian within forty-eight hours. The statute refers to executing a new power of attorney after the one year time limit has elapsed and states no cap on successive ones.

3. 3

   Both signatures must be acknowledged before a notary, and the form includes a notary acknowledgment for the parent and for the designee. The form has a single parent/legal custodian signature line, and Article 8 does not say whether both parents must sign or whether the other parent must be notified. It states no filing or recording step.

4. 4

   Article 8 applies only to situations where the parent provides for temporary care and custody with the assistance of a qualified nonprofit organization. That organization must run a criminal history and federal and state background check on the designee before signing and must train the designee. The statute also says it does not restrict powers of attorney in other contexts, so this page does not tell you how those are governed.

5. 5

   The designee may receive all power regarding the care, custody and property of the child, including enrolling the child in school, obtaining education records, attending school activities, and giving or withholding consent to medical and dental treatment and other activities. The parent may instead write in specific powers only. A parent may not delegate termination of parental rights, consent to marriage or adoption, or the performance or inducement of an abortion. This page does not promise that any school or provider must accept the document.

6. 6

   This is not a court guardianship. The parent may revoke or withdraw the power of attorney at any time, and the delegation does not change or modify any rights or authority established by an existing court order. The designee acts without compensation and may not move from the address listed on the form without the parent's written approval. The statute states no relationship or age requirement for the designee.

7. 7

   If this document does not fit your situation, or a longer or court-backed arrangement is needed, a circuit court or family court can appoint a guardian for a minor under W. Va. Code 44-10-3. A temporary guardian may be appointed in the child's best interest on a showing that an immediate need exists or that a period of transition into the custody of a parent is needed, requires a hearing within 10 days of the petition, and may not exceed six months unless extended by further court order. A court guardianship over a parent's objection is a contested case. DocDraft's guardianship-of-a-minor-petition page covers the court petition. For abuse or danger to a child, contact the West Virginia child protective agency. For disputes between parents, see DocDraft's child-custody-agreement and parenting-plan pages.

West Virginia Requirements for Temporary Guardianship Agreement

• Statutory Power of Attorney

  A parent, guardian or legal custodian may, by a properly executed power of attorney, delegate to a person the care and custody of a child. The designee signs to accept the designation (W. Va. Code 49-8-3(b), 49-8-4(a)).

• One-Year Maximum

  The delegation may not exceed one year, with beginning and ending dates stated on the form. A new power of attorney may be executed after the one year time limit has elapsed (W. Va. Code 49-8-3(b), (h), 49-8-4(a)).

• Notary Acknowledgment

  The signatures of the parent and the designee must be acknowledged before a notary. A power of attorney is legally sufficient under Article 8 if its wording substantially complies with the statutory form, it is properly completed and the signatures are acknowledged (W. Va. Code 49-8-4(a), (b)).

• Nonprofit-Assisted Arrangements

  Article 8 applies only where the parent arranges temporary care with the assistance of a qualified nonprofit organization, which must run a background check on the designee before execution and must train the designee. The statute does not restrict powers of attorney in other contexts (W. Va. Code 49-8-3(a), (i)).

• Powers Delegated

  The parent may delegate all power regarding the care, custody and property of the child, including school enrollment, education records, school activities, and consent to medical and dental treatment, or may write in specific powers only (W. Va. Code 49-8-4(a)).

• Powers That Cannot Be Delegated

  A parent, guardian or legal custodian may not delegate termination of parental rights, consent to marriage or adoption, or the performance or inducement of an abortion (W. Va. Code 49-8-3(c)).

• Revocation and Return of the Child

  The parent may revoke or withdraw the power of attorney at any time. On termination, expiration or revocation the child must be returned within forty-eight hours (W. Va. Code 49-8-3(e)).

• Existing Court Orders and Address

  The delegation does not change any rights or authority established by an existing court order. The designee may not move from the address listed on the form without the parent's written approval and acts without compensation (W. Va. Code 49-8-3(d), (f), (j)).