“For Your Own Good” Emergency Guardianship of an Incompetent or Incapacitated Person
You might need to file an emergency application for temporary guardianship if your loved one is incapacitated and
The applicant must allege and prove that there is an imminent danger that the physical health or safety of Proposed Ward will be seriously impaired unless immediate action is taken; or
The applicant must allege and prove that there is an imminent danger that the proposed Ward’s assets, estate, or business consists of perishable property likely to perish, waste, or be destroyed, or otherwise substantially depreciate.
Some examples include:
(1) he or she has been abused or neglected,
(2) has been financially exploited,
(3) there are competing claims about who caused the abuse, neglect, or financial exploitation,
(4) challenge a treatment decision made when the patient / proposed Ward does not have an advanced directive or directive to physicians;
(5) the incapacitated person’s business will suffer immediate harm unless a guardian is appointed to run the business; or
(6) a lawsuit must be filed or answered within time limits or be barred by statute of limitations.
Emergency guardianship is a lawsuit. You should only apply for guardianship if you are strong enough to do what you think is right despite criticism of you by the proposed ward and other family members. You must have courage to take unpopular actions which disrupt the status quo for the best interest of the proposed ward.
An “Incapacitated Person” is “an adult individual who, because of a physical or mental condition, is substantially unable to provide food, clothing or shelter for himself or herself, to care for the individual’s own physical health, or to manage the individual’s own financial affairs“
Temporary Guardianship is an emergency proceeding. First, it is necessary when an individual is not taking care of himself or herself because of illness or injury. Second, there must also be an imminent threat to the health and safety of an incapacitated person, or an imminent threat that an incapacitated person’s estate will be harmed.
In order for the applicant to qualify to be a guardian, he or she must convince the court that he or she:
- is not under the age of 18;
- is not also incapacitated;
- is capable of prudently managing and controlling estate assets;
- is not asserting an adverse claim against the proposed ward;
- is not indebted to the proposed ward;
- is not a party to a lawsuit in which the proposed ward is also a party;
- is not unsuitable;
- is not disqualified by a written declaration;
- is not known to be a person whose conduct is notoriously bad