Guardianship is mandated if an adult individual cannot make and communicate his own decisions. Furthermore, the individual did not sign a Power of Attorney during his lifetime and needed a person to make medical decisions while assisting with financial transactions on his behalf.
If an individual signed a Power of Attorney during his lifetime, then guardianship is typically not required, as the agent would be able to make medical and financial decisions during the principal’s incapacity. In some cases, even if incapacitated and without a Power of Attorney, they can function in the community without a guardian due to the availability of supportive family members and caregivers.
It is important to know the timeline of the process. For example, due to high caseloads, when an interested party decides to file for guardianship, it could take several months to complete the guardianship process. However, there are scenarios where an alleged incapacitated person cannot wait several months for a guardian to be appointed and requires guardianship services on an emergency basis.
For instance, Pennsylvania law provides that when clear and convincing evidence demonstrates that the alleged incapacitated person appears to lack capacity, requires a guardian and a failure to make such an appointment will result in irreparable harm to the person or estate of the alleged incapacitated person, then an emergency guardianship is appropriate in accordance to the Pennsylvania Code.
Upon filing the petition for emergency guardianship with the proper court, a hearing is generally set to occur one to two days later. Due to the emergency nature of the situation, many of the usual procedural requirements necessary for regular guardianship are dispensed. For example, it is not necessary to give 20 days’ notice to the alleged incapacitated person and his family members.
But, a citation must be served on the alleged incapacitated person, and a reasonable attempt to provide notice to his family members must be completed. Moreover, medical testimony must be provided at the hearing, along with the appearance and testimony of the proposed guardian.
Remember that the appointment of an emergency guardian is temporary, as the order is only considered valid for 72 hours, with the possibility of extending the order if the emergency continues. If the emergency remains pertinent after 72 hours, then the order appointing the guardian of the person may be extended an additional 20 days from the expiration of the initial order, and an appointment for the guardian of the estate may extend for 30 days.
Once the emergency order expires, a full guardianship hearing must occur to grant a permanent guardian of the person and estate.
Emergency guardianship is only to be sought in limited circumstances, typically when the individual’s health is at risk or an immediate decision must be made regarding the incapacitated person’s health or estate. Even if the alleged incapacitated person selected an agent under a Power of Attorney to act on his behalf, emergency guardianship might be required if the agent is not fulfilling his duties.
For example, if it is alleged that the agent is stealing the incapacitated person’s assets, it becomes necessary to revoke the agent’s authority and appoint a guardian in place of the agent. Seeking emergency guardianship only to pay an individual’s bills typically does not equate to the standard of irreparable harm since creditors are willing to defer payment for several months.
The temporary nature of emergency guardianship makes it appropriate only in the most immediate circumstances and when irreparable harm could be caused to the medical condition or estate of the incapacitated person.
When Should an Emergency Guardianship be Considered?
The scenarios supporting an emergency guardianship may include:
- Appointing a guardian to consent to a surgical procedure.
- Facilitating a safe and appropriate discharge from a hospital.
- Preventing the alleged incapacitated person from being victimized by financial predators.
It is crucial to receive quick and effective advocacy in providing legal representation on behalf of petitioners in the emergency guardianship process. Sometimes, a medical or psychiatric event can trigger an in-patient hospitalization or intervention by law enforcement personnel or social workers.
Reaction times to these sensitive cases can warrant 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 usually scheduled within 48 to 72 hours of filing the emergency petition.
Furthermore, 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 understandable to the alleged incapacitated person. The alleged incapacitated person has the right to attend the hearing. Their presence is only excused if a physician signs an affidavit representing the court that such attendance would harm the alleged incapacitated person mentally or physically.
What Occurs at 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 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 testify at the hearing. They can also serve as witnesses to support the petition.
If the court grants emergency guardianship, the court will enter a temporary order assigning 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 is permitted to serve as both the emergency guardian of the person and the estate of the alleged incapacitated person, or different individuals may be appointed to serve in each role.
Moreover, the petitioner must file a permanent guardianship petition with the court within 30 days of the entry of the emergency guardianship decree. The permanent petition is typically filed with the court simultaneously with the emergency petition. You can research the local emergency guardianship laws to ensure accurate deadlines for the petition.
What are Some Factors the Courts Examine?
The court will examine the following factors to help determine whether the respondent needs a guardian or conservator. These factors can also be used to determine which duties and powers the guardian or conservator will be awarded.
The factors are:
- The respondent’s limitations;
- The respondent’s maximum self-reliance and independence;
- The availability of less restrictive alternatives (advance directives, power of attorney);
- The extent to which it is necessary to protect the respondent from abuse, neglect, or exploitation;
- The suitability of the proposed guardian or conservator;
- The actions needed to be taken by the guardian or conservator;
- When to appoint a guardian or conservator – is the respondent incapable of receiving and evaluating information effectively or responding to people;
- Does the respondent lack the ability to make decisions about essential health/safety requirements and;
- Does the respondent lack the ability to manage finances properly, property, or provide for himself without assistance?
When Do I Need a Lawyer?
If you believe that you need to file for emergency guardianship. It is important to seek your local state guardianship lawyer to assist you. As mentioned above, this type of guardianship is time-sensitive and may meet your needs depending on the situation.