Today, we are going to discuss emergency guardianships. While emergency guardianships can apply to anyone, they are especially applicable to the elderly. So, if you have an elderly loved one who might be in need of some additional legal help in an emergent situation, this post is for you.
A solid estate plan involves more than filling out forms or using a software. It consists of a number of documents tailored to your specific wishes, family needs, and financial situation like a trust, a pour-over will, a durable power of attorney, and a healthcare directive or living will, just to name a few. One of the many protections these documents offer you and your assets is the appointment of a guardian in case you cannot make decisions for yourself. A guardian steps in to take care of your assets and family just like you would. But what happens when no guardian has been appointed? That is when emergency guardianships become necessary.
Emergency guardianships are created by a court when, as the name indicates, there is an emergency. Under Utah law, a court may appoint an emergency guardian when:
There is an emergency or a situation occurs that is considered an emergency for purposes of this type of guardianship;
The respondent’s welfare and wellbeing require some type of action immediately; and
No other guardian has been appointed to make decisions on behalf of the respondent or the appointed guardian is not performing his or her duties effectively.
Note that emergency guardianships, as the three-prong test above indicates, do not require the respondent to be considered incapacitated per se. They commonly apply to cases when older adults suffer serious injuries and are left debilitated, for example. Requirements for an emergency guardianship generally include the following situations:
Risk of Harm: there is a risk of harm if no guardian is appointed that could lead to further harm, incapacitation or even the death of the respondent;
Incapacitation: in this case, first the court must make a determination that the respondent is temporarily or permanently incapacitated, typically due to an injury, a disease, mental disability, addiction, or other types of incapacity, before an emergency guardian is appointed; and
No Available Alternatives: when no other alternatives exist, or there are no other guardians available to serve as such, the court will appoint an emergency guardian to protect the respondent.
Emergency guardians are appointed without notice to interested parties and can serve as such for up to 30 days. Fourteen days after the court appoints the emergency guardian, the judge will schedule a hearing with all interested parties to determine where to go from there. At this point, the interested parties can request the court to appoint a temporary guardian to serve as such for more than 30 days with no restrictions or limited capacity. Once the temporary guardian is appointed, the emergency guardian is removed from the position and can no longer act as such. Both the emergency and the temporary guardian have a duty to protect the respondent’s care and custody, and the power to prevent the respondent from being removed from Utah, for example. These types of guardians must obey all court orders and can be removed at any time by a judge. The duties of an emergency guardian can be divided into two categories:
Duties to the Respondent: in this case, the emergency guardian is responsible for making decisions on the respondent’s behalf concerning his or her health and mental conditions. In this case, the guardian may have to accompany the respondent at medical appointments and help with hospital paperwork.
Duties to Respondent’s Property: emergency guardians may also have to deal with the respondent’s properties and assets, and make sound financial decisions on the respondent’s behalf like managing respondent’s rental properties.
Because emergency guardianships are short-term guardianships, once the period of incapacitation or debilitation, or emergency situation has ended, this type of guardianship terminates and the respondent regains full power to make decisions on his or her own behalf. Emergency guardians will be held liable if they continue to act as such after their appointment ends.
Emergency guardianships can be easily avoided by choosing a person you trust, before anything happens to you, to serve as your guardian and take care of your family and assets in the same way you do. But when choosing a guardian in advance is not possible, an emergency guardianship is the best way to protect yourself or a loved one. If you have questions about emergency guardianships or would like to protect your family and properties in case of emergency situations, give us a call today at (385) 334-4030 or go to https://www.skvlegal.com/contact and schedule a free consultation with one of our attorneys.
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