When is Getting Emergency Guardianship Appropriate?
As adults, we are accustomed to making our own decisions and managing our own affairs, both personal and financial. Unfortunately, sometimes adults become unable to take care of their own needs, and someone else needs to step in to assist them, for their own protection. This may require getting emergency guardianship, also referred to as temporary emergency guardianship.
Adult guardianship is necessary when a person becomes legally incapacitated. What exactly does that mean? The Michigan Estates and Protected Individuals Code (EPIC) defines an “incapacitated individual” as someone who is “impaired by reason of mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, or other cause, not including minority, to the extent of lacking sufficient understanding or capacity to make or communicate informed decisions.”
Filing a Petition for Guardianship in Michigan
There is no need for a guardianship if an adult has valid powers of attorney in place. Powers of attorney name an to make personal or financial decisions on the adult’s behalf if the adult becomes legally incapacitated. If an adult did not create powers of attorney prior to becoming incapacitated, the only way for another adult to legally make decisions on their behalf would be to seek a guardianship.
Often, the need for a guardianship arises gradually over time, such as in the case of an elderly parent who is developing dementia. In those cases, an interested person (like an adult child or other relative) files a Petition for Appointment of Guardian of Incapacitated Individual. The petition is filed in the probate court in which the adult in need of protection lives or is found.
Because a guardianship takes away an adult’s rights to make their own decisions, there are legal safeguards in place to make sure a guardian is needed. For instance, a hearing on the guardianship petition must be scheduled. Interested persons, such as family members, must be notified of the petition and hearing and given the opportunity to attend. The adult must also receive notice and a list of their rights. A guardian ad litem (GAL) must also be appointed for the adult who is the subject of the petition. (Despite the name, a GAL is not a legal guardian who has any authority to make decisions for the adult. A GAL is someone, often an attorney or other professional, who looks into the facts, meets with the adult, explains their rights to them, and expresses their wishes about guardianship to the court.)
Because of these requirements, there are typically at least a couple of weeks between the filing of the petition and the probate court hearing at which a guardian may be appointed. Waiting for the hearing is often stressful for the loved ones of the person for whom the guardianship is being sought. But it is important for the court to balance the individual’s possible need for protection against their rights to autonomy and due process.
But what happens if waiting isn’t an option? Sometimes, incapacity arises suddenly, or an emergency situation makes it unsafe for an adult to continue to make their own decisions. In that case, getting temporary emergency guardianship may be necessary.
Getting Emergency Guardianship in Michigan
Michigan law authorizes the appointment of a temporary guardian in an emergency circumstance. There must be a hearing on a petition for emergency guardianship, and the subject of the petition must be notified. Other interested parties may not be notified of the emergency hearing, given the time constraints.
The statute does not specifically define what is considered an emergency for purposes of temporary guardianship. What is an emergency depends on the facts of a situation. A common reason for getting an emergency guardianship in Michigan is when the adult has a medical issue that must be addressed promptly to avoid serious and permanent harm.
For example, an older adult is determined to have a type of aggressive cancer that needs to be treated urgently to prevent it from spreading and becoming lethal. The adult is in the early stages of dementia and does not have a good understanding of her medical condition or what will happen if she does not have surgery right away. Her adult son might seek an emergency guardianship so that he can consent to the surgery on her behalf and help her to have the best possible outcome.
Although many people seek emergency guardianship in Michigan for medical reasons, an urgent medical situation is not the only situation that can make getting emergency guardianship necessary. A senior who is at risk for serious harm from an abusive situation may also need emergency guardianship. For instance, a senior with diminished mental capacity could be the victim of escalating abuse by a caretaker, and may not know how to seek help or get that person out of the house. A friend or family member who suspects the senior is in danger might file a petition for temporary guardianship, along with contacting Adult Protective Services.
As a general rule, a temporary emergency guardianship is appropriate if the adult is legally incapacitated; there is a risk of harm, especially serious or irreparable harm, without an emergency guardian; and there is no reasonable alternative solution.
Getting an emergency guardianship is not an “end run” around the usual guardianship process. The emergency guardian is appointed only on a temporary basis to prevent harm, but there must be another hearing on the guardianship within 28 days with appropriate notice to all interested parties.
In order to get a temporary guardianship, you must prove to the court that there is a true emergency and no other way to prevent the harm that could happen if a temporary guardian is not appointed. If available, you should provide the court with a statement from a doctor or social worker to support your position. An experienced Michigan guardianship attorney can help you successfully persuade the court that an emergency guardianship is truly necessary.
If you have further questions about emergency guardianship in Michigan, please contact our law office for a consultation.