The Court may appoint an emergency guardian when it appears that an individual lacks capacity, is in need of a guardian, and failure to make such an appointment will result in irreparable harm to the person and/or estate of the alleged incapacitated person (note the term “incompetent” is no longer used in guardianship matters). In seeking the appointment of an emergency guardian, a person or institution, such as a hospital or nursing home, files a Petition for the Appointment of an Emergency Guardian with the Court and a hearing is scheduled on the merits of the petition.
When should an Emergency Guardianship be Considered?
The circumstances supporting an emergency guardianship may include the need to appoint a guardian to consent to a surgical procedure, to facilitate a safe and appropriate discharge from a hospital, or to prevent the alleged incapacitated person from being victimized by financial predators.
Need for Quick and Effective Advocacy
Quick and effective advocacy is critical in providing legal representation on behalf of petitioners in the emergency guardianship process. Frequently a medical and/or psychiatric event has triggered an in-patient hospitalization or intervention by law enforcement personnel or social workers. Time is of the essence to meet with a client, coordinate with attending physicians, and prepare and file an emergency guardianship petition. Strict service requirements involving the alleged incapacitated person and family members must be followed. Most importantly, counsel must be prepared to present evidence at the hearing which is often scheduled within 48 to 72 hours of the filing of the emergency petition.
Steps Taken Prior to the Hearing
The petitioner must inform the alleged incapacitated person of the filing of the petition and the scheduled day and time of the emergency hearing in terms and language the alleged incapacitated person is most likely to understand. The alleged incapacitated person has the right to attend the hearing, and his or her presence is only excused if a physician signs an affidavit representing to the Court that such attendance would be harmful, either mentally or physically, to the alleged incapacitated person (if the person required intensive care in a hospital for example). The petitioner must also notify the intestate heirs of the alleged incapacitated person (if their whereabouts are known) concerning the emergency petition and hearing.
The Hearing
At the hearing the petitioner presents evidence of a person’s incapacity and why the appointment of an emergency guardian is necessary. A physician or psychologist presents evidence of a person’s incapacity and this is often submitted in a written form prescribed by the Court referred to as Written Interrogatories or Written Deposition. Family members, care providers and social workers may also testify at the hearing and are frequently presented as witnesses in support of a petition.
Entry of a Temporary Emergency Decree
If the Court grants an emergency guardianship, the Court will enter a temporary order appointing an emergency guardian of the person for a period not to exceed 23 days, and an emergency guardian of the estate not to exceed 30 days. The same individual may serve as both the emergency guardian of the person and of the estate of the alleged incapacitated person, or different individuals may be appointed to serve in each role. The petitioner has a duty to file a permanent guardianship petition with the Court within 30 days of the entry of the emergency guardianship decree. The permanent petition is often filed with the Court at the same time as the emergency petition.