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A guardianship is a legal proceeding in the probate court in the county in which a person resides in which a determination is made that a person (“ward”) is incompetent to properly care for himself or for his assets. A guardian is a person who is appointed by the probate court to be responsible for the ward’s personal well being (guardian of the person) and/or the ward’s property (guardian of the estate). The person who has a guardian appointed for them is called a ward, and this ward may be a minor or an adult.
The appointment of a guardian for a person in an emergency situation is different from the process of a standard guardianship. It is especially imperative for medical practitioners to be aware of the process as they are far more likely to serve as the front line of contact with such individuals at the critical point when medical decisions are required. Family members need to be especially aware of this process in case an emergency medical or financial situation arises for a loved one.
In order for an emergency guardianship to be appointed, it must be established that: (1) an emergency exists, and (2) it is reasonably certain that immediate action is required to prevent significant injury to the person or estate of a minor or incompetent adult. In other words, there must be a risk of the person suffering substantial, imminent physical, or financial harm. An emergency with imminent physical harm generally refers to a life-threatening situation. An emergency with imminent financial harm generally refers to a situation when the ward is subject to financial exploitation by a third party. In these types of situations, a doctor’s statement of expert evaluation is the primary piece of evidence used by the court in making the determination of whether an emergency guardian is needed.
A standard guardianship requires notice to the proposed ward and next of kin before a guardian is appointed. In an emergency guardianship situation, after the application for the appointment of an emergency guardian is filed by a family member or interested party, the court may act without notice and without a formal hearing by appointing an emergency guardian for a maximum of seventy-two hours. If appointed, the emergency guardian’s authority is limited only to those powers that are necessary to deal with the imminent harm. A copy of the court’s order must be served on the ward as soon as possible after it is issued. The emergency guardianship may be extended by the court for a period of 30 days or until the actual guardianship hearing is held after notice to the ward and all next of kin.
By understanding the emergency guardianship process, family members can more quickly act for loved ones who lack the capacity to make medical decisions or who are being financially exploited. Please contact an attorney to assist you in these types of situations.
NOTE: This general summary of the law should not be used to solve individual problems since slight changes in the fact situation may require a material variance in the applicable legal advice.
James F. Contini II, Esq.
Certified Specialist in Estate Planning,
Trust & Probate Law by the OSBA
Krugliak, Wilkins, Griffiths & Dougherty Co., LPA
158 North Broadway
New Philadelphia, Ohio 44663
Phone: 330-364-3472
Fax: 330-602-3187
Email: jcontini@www.kwgd.com
www.kwgd.com