A guardianship refers to the duties and rights granted to a legal guardian. A legal guardian is typically court appointed to make personal, medical, and financial decisions on behalf of another person. This other person is referred to as a ward. In most guardianship scenarios, the ward is a child, or an adult with a severe mental or physical disability.
Generally, the ward is unable to make decisions for themselves. Guardianships may be temporary, such as when a minor child turns eighteen, or permanent, such as when the ward is unlikely to ever recover the capacity to make their own decisions.
An emergency guardianship is a specific type of guardianship formed when an emergency has occurred. The emergency guardian will likely be tasked with assisting a ward who has become incapacitated or debilitated due to injury, disease, or some other similar circumstance. Emergency guardianships tend to be temporary, and may cover situations that do not always involve an emergency.
State statutes as well as specific circumstances will determine how long an emergency or temporary guardianship will last. If the temporary order expires, the court may extend the order as needed. Legal documents created to preemptively appoint a guardian may also specify a time period for the guardianship to last.
How Is an Emergency Guardianship Created?
In most cases, emergency guardianships are created by a court, with the judge issuing an order that appoints a specific emergency guardian to the ward. The court order may list the guardian’s duties and responsibilities to their ward, which the guardian is then legally obligated to adhere to.
A person may appoint their own guardian while they still have the capacity to do so. For instance, a person may appoint a guardian when their mental capacity is declining, and the guardian may then step in under emergency circumstances. This is generally created through the use of legal documents such as an advance directive, or a living will. The legal document appointing the guardian should contain language that explicitly appoints a specific person as a guardian. An example of this type of language would be, “In the event that I become incapacitated, I appoint (person’s name) as my emergency guardian.”
What Are the Requirements for a Valid Emergency Guardianship?
In order for an emergency guardian to be appointed, there are some specific requirements that must be met. These may vary based on state laws and circumstances; however, the requirements generally include:
- Incapacitation: As previously mentioned, the ward must be incapacitated in some way; meaning, the court must determine that the person being represented by a legal guardian is unable to make emergency decisions on their own. This could be due to injury, disease, mental disability, addiction, or some other type of incapacity. Some jurisdictions require that the ward be completely incapacitated before appointing a legal guardian;
- Risk of Harm: There is a risk of harm if the appointment of a guardian is not made. It must be shown that the ward is at risk of further harm, incapacitation, or even death if an emergency guardian is not appointed to them; and
- No Alternatives: There are no other alternatives available given the circumstances, such as the ward did not leave a legal document that specified the appointment of a legal guardian. The court must conclude that there is no other person available who may act as the ward’s legal guardian throughout the emergency conditions.
These requirements serve to prevent a person from simply declaring themselves as an emergency guardian for another person, even if they are close relatives. In order to be named a legal guardian, the interested party would need to begin the process by petitioning the court and proving the need for a legal guardian. The court will need sufficient evidence supporting the claim, and will then likely hold a hearing in which the ward and other witnesses can challenge or affirm the statements made in the petition.
What Duties Does an Emergency Legal Guardian Have to Their Ward?
A legal guardian may have varied duties depending on the needs of the ward. In general, the duties can be divided into two categories:
- Duties Related to the Person: A guardian of the person is responsible for matters dealing with the ward’s health or medical conditions. The guardian may be required to assist with medical appointments and hospital paperwork; and
- Duties Related to Property: A guardian of the property is tasked with duties related to the ward’s property. An example of this would be a guardian managing rent payments throughout the duration of the emergency situation.
It is important to reiterate that emergency guardianships are temporary in nature. This means that once the ward has regained their capacity to make legal decisions on their own behalf, the guardianship will terminate. The guardian may be held liable for a violation if they insist on handling their former ward’s affairs once the guardianship has been terminated.
Do I Need an Attorney for an Emergency Guardianship
A skilled and knowledgeable estate attorney can assist at any stage of the guardianship process. An experienced estate attorney can help you include a guardianship provision in your will or advance directive. Further, if any disputes arise regarding the emergency guardianship appointment for a loved one, an attorney can represent you in court as necessary.