What can you do if a person is at immediate risk of injury or exploitation without a guardianship? In extreme circumstances, an emergency guardianship may be necessary.
The guardianship process can take anywhere from two to six months after the petition is filed before someone is appointed by the court. The guardianship process takes this long because there are a lot of safeguards in place before the court takes the significant step of taking away someone’s individual rights and appointing a guardian.
Emergency Guardian ad litem
But what if you do not have six months for someone to be appointed? What happens when there is some sort of emergency where the person’s life could be at risk if they had to wait? In that circumstance the court has the authority to appoint what is called an emergency guardian ad litem.
An emergency guardian ad litem will be appointed in an emergency situation when the person is at immediate risk and we simply cannot wait for the normal course and practice. An emergency guardian ad litem can only be appointed if the person is at serious risk of physical harm or (for a conservator) if there is a substantial risk of irreparable damage to the person’s property.
Keep in mind – an emergency guardian ad litem is only available in an emergency situation – not just as a means of speeding up the guardianship process. The court appoints an emergency guardian ad litem without following all of the normal procedural safeguards to protect the individual, so this will only be done to protect a person from imminent serious harm.
Petition for emergency guardianship or conservatorship
To obtain an emergency guardianship, you first file a petition for emergency guardianship and/or conservatorship (conservatorship is for money). Once you file the petition, the court will appoint an attorney for that person. You must also serve the guardianship petition on the person and to any potentially interested persons – such as a spouse or close family.
Hearing for emergency guardianship
The court is required to hold a hearing on an emergency petition within five business days if possible. At the hearing, the petitioner must show an emergency exists that presents a substantial risk of either physical harm, or irreparable damage to the person’s property. If the court agrees an emergency exists, the court will appoint an emergency guardian ad litem.
Appointment of a Guardian ad litem
An emergency appointment of a guardian ad litem is not intended to be a substitute for a regular guardianship case. The court will only appoint a guardian ad litem for ninety (90) days. The appointment will also specifically state the guardian ad litem’s powers, which may be limited to a specific purpose tailored to the emergency. The court can extend the guardian ad litem appointment by ninety (90) day increments.
The expectation is that a guardianship petition will be filed (or the guardian ad litem dismissed) during the first ninety (90) day period. If a regular guardianship petition has not been filed within the first ninety (90) days, the court has the power to dismiss the appointment if the court decides it is no longer necessary.
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Guardianship lawyer Tim McCurdy
Guardianship requires a lawyer who will listen to you. You need a partner to help guide you through the complex guardianship process. Tim McCurdy will take the time to learn about your unique situation to help look for a solution.
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