When a probate judge issues a guardianship order, the court appoints a caretaker to handle the personal affairs, healthcare decisions, and/or financial affairs of an incapacitated person (known as a ward in guardianship proceedings). A guardianship agreement is intended to remain in effect until the ward no longer needs a guardian. Due to the agreement’s permanency and the significance of taking away an adult’s ability to make their own decisions, guardianship proceedings can take several months to complete.
That said, lawmakers understand that there are emergency situations that may require the immediate appointment of a guardian. In these situations, it would be impractical and potentially life-threating to wait several months for a guardian to be appointed. To account for these contingencies, Arizona law allows the court to appoint a temporary guardianto handle the ward’s affairs until a permanent guardian can be appointed.
Requirements for an Emergency Guardianship
While the laws governing an emergency guardianship vary from state to state, the criteria for determining the necessity of an emergency guardianship are fairly universal. Generally speaking, the judge will need to see evidence of the following:
- The prospective ward is incapacitated – the court will only appoint a guardian if the prospective ward is unable to make important decisions due to mental disability, disease, injury, or other types of incapacity. This requirement is typically satisfied by a certificate or letter from a physician or psychologist.
- A serious risk of death or bodily harm – though most emergency guardianship cases revolve around an incapacitated adult who is personally at risk of death of bodily harm, the court may consider emergency intervention if there are other individuals in the home who are at risk of death or bodily harm (e.g. if the incapacitated adult has a minor child who is in danger).
- Delays in treatment would be harmful – to qualify as an emergency, the court will consider whether it would be harmful to postpone treatment until a traditional guardianship can be established.
- There aren’t any alternatives – if the prospective ward has a spouse, he or she has the ability to make important healthcare decisions and personal care arrangements. If the prospective ward previously issued a durable power of attorney, then the agent or attorney-in-fact should have the requisite authority to step in and handle the ward’s affairs.
Alternatively, the court can appoint a temporary guardian if the ward’s current guardian passes away, resigns, or is removed by the court. The temporary guardian will be charged with managing the ward’s affairs until a new, permanent guardian can be formally appointed.
How to Initiate an Emergency Guardianship
If you have a family member or friend who has lost their mental capacity and requires immediate intervention, here’s how to go about the process of appointing an emergency guardian:
- Hire an attorney – guardianship is a complex process, so you’ll need an attorney to represent you. An experienced attorney will know how to expedite the process and ensure the prospective ward is able to receive assistance as soon as possible.
- File a petition for guardianship – a temporary guardianship is an extension of traditional guardianship, so the court can’t issue an order for temporary guardianship until the traditional guardianship process has begun. To do that, your attorney will need to submit a petition for guardianship to the county probate court.
- File forms for temporary guardianship – once the court clerk has accepted the petition, you can submit the appropriate forms for a temporary guardianship. You’ll also need to submit evidence that the prospective ward is incapacitated (usually a certificate from the ward’s doctor or psychologist), along with an affidavit detailing why temporary guardianship is necessary.
- Issue an emergency guardianship – in an emergency situation, the court may enter a finding of interim incapacity and appoint a temporary guardian without notice to the ward or the ward’s attorney. This initial order typically comes with an expiration date of anywhere from 6 to 30 days.
- Serve notice to the ward – even if the judge issues an emergency guardianship, you’ll still need to schedule a temporary guardianship hearing and serve notice to the ward and his or her attorney.
- Attend the temporary guardianship hearing – at the initial hearing, the ward and his or her attorney will have the opportunity to respond to temporary guardianship petition. If the court determines that the temporary guardianship needs to remain in effect until a permanent guardian is appointed, the judge can extend the initial emergency guardianship order up to 6 months.
Keep in mind that during this process you’ll need to keep the wheels moving towards a permanent guardianship. That involves scheduling another guardianship hearing, serving a notice of hearing to all interested parties (namely the ward’s family members), paying for a court investigator to evaluate the ward, and attending the guardianship hearing.
Responsibilities of an Emergency Guardian
In any guardianship (not just temporary ones), the court can issue authority over the person, the estate or both. A guardian of the person typically has control over the ward’s healthcare and living arrangements, while a guardian of the estate has control over the ward’s assets. If the ward is significantly incapacitated, the guardian is usually issued authority over both the person and the estate.
In an emergency guardianship, the appointed guardian’s responsibilities will depend entirely on what is deemed necessary by the judge. Emergency guardians typically have limited authority, as the court prefers to withhold general guardianship authority until the full guardianship proceedings can play out with the assistance of a court investigator. Some examples of common emergency guardianship responsibilities include:
- Access to liquid assets (bank accounts, brokerage accounts, and cash)
- Paying the bills
- Collecting income (investment income, retirement income, Social Security, disability insurance, worker’s compensation payments, etc.)
- Consulting with the ward’s healthcare professionals to determine treatment
- Arranging for basic needs such as housing, clothing, food, and transportation
Note that an emergency guardian cannot (without a judge’s prior approval) sell the ward’s home, give up a lease, sell an estate asset, or gift an estate asset. Generally speaking, the emergency guardian is prohibited from moving the ward from his or her home unless there’s an emergency and the move is approved by the judge.
Ending Emergency Guardianship
An emergency or temporary guardianship concludes when the ward passes away, regains their mental capacity, or the court issues a permanent guardianship order. If none of the above take place within the time allotted by the court (up to six months), the temporary guardianship will expire.
Call Guardianship and Conservatorship Attorney Colton Johnston at (480)467-4313 to discuss your case today.