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Emergency Guardianship Laws

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What is an Emergency Guardianship?

An emergency guardianship is a type of guardianship that is formed specifically in the event of an emergency.  In most cases, the emergency guardian is appointed with the task of assisting a person who has become incapacitated or debilitated due to an injury, disease, or other similar conditions.

Emergency guardianships are different from more permanent guardianships involving the care of a minor.  Emergency guardianships are temporary, and are sometimes called “temporary guardianships”.  However, the category of temporary guardianships may cover situations that do not always involve an emergency. 

How are Emergency Guardianships Created?

In most cases, emergency guardianships are created under the direction of the court.  A judge will often issue an order that appoints an emergency guardian for the person.  The court order may list the guardian’s duties and responsibilities, which they are obligated to follow under state laws. 

Sometimes a person can appoint their own guardian who will step in under emergency circumstances.  This is often done through the use of legal documents such as an advance directive or a living will.  The document will often contain language such as the following: “In the event that I become incapacitated, I appoint _____ as my emergency guardian”. 

What are the Requirements for a Valid Emergency Guardianship?

The laws governing guardianship may vary from state to state; however, most states will require the following in order for an emergency guardianship to be enforceable in court:

  • Incapacitation:  The court must determine that the person being represented by the guardian is unable to make emergency decisions due to injury, disease, mental disability, addiction, or other type of incapacity.  Some jurisdictions require complete incapacitation before they will appoint a guardian.
  • Risk of Harm:  It must also be shown that the person will be at risk of further harm or even death if an emergency guardian is not appointed.  
  • No Alternatives:  Lastly, the court must conclude that there is no other person available who can act as a guardian throughout the emergency conditions

Thus, person cannot simply declare themselves as an emergency guardian for another, even if they are close relatives.  Either the person must name them in a document as their emergency guardian, or the court must appoint them based on the requirements listed above. 

What are the Duties of an Emergency Guardian?

The duties of an emergency guardian can be classified into two basic categories:  Duties related to the person, and duties related to the person’s property.  An emergency guardian can sometimes perform both of these types of duties.  Some of these duties include:

  • Duties related to the Person:  A “guardian of the person” is responsible for those matters dealing with the person’s health or medical conditions.  For example, the guardian may be required to assist with medical appointments and hospital paperwork.
  • Duties related to the Property:  A “guardian of the property” takes care of duties related to the person’s property.  For example, the guardian may be required to help manage rent payments throughout the duration of the emergency situation.

Again, it should be noted that emergency guardianships are temporary in nature.  Once the person regains their capacity to make legal decisions, the guardianship will terminate.  The guardian can then no longer legally act on behalf of the person.  In fact, they may be held liable for a violation if they insist on handling the person’s affairs after the guardianship has been terminated.

Do I need a Lawyer for Emergency Guardianships?

Emergency guardianships may be necessary in order to assist a person who has become incapacitated.  If you any disputes arise over the emergency guardianship for a loved one, a lawyer can help you file a claim in court.  Also, if you are thinking about creating a document that names your emergency guardian, a lawyer can help you draft and review the document.   

Photo of page author Ken LaMance

, LegalMatch Law Library Managing Editor and Attorney at Law

Last Modified: 10-31-2012 03:01 PM PDT

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