Establishment

Emergency Powers

The Uniform Guardianship and Protective Proceedings Act (UGPPA 1997) uses the following standard for the appointment of an emergency guardian: Substantial harm to respondent's health, safety, or welfare, and no other person appears to have authority and willingness to act (§ 312). The Act requires that a petition be filed with the court, notice to respondent be given (unless the respondent will be substantially harmed before a hearing can be held), the respondent have a right to counsel and presence at the hearing, and that the emergency guardian's authority not exceed 60 days. The Uniform Law Commission tracks the status of the Act for each state—to date, only a handful of states have enacted the Act in full.

The National Probate Court Standards (Standard 3.3.6) recommends courts to only appoint a temporary guardian or conservator ex parte:

  • Upon the showing of an emergency;
  • In connection with the filing of a petition for a permanent guardianship or conservatorship;
  • Where the petition is set for hearing on the proposed permanent guardianship or conservatorship on an expedited basis; and
  • When notice of the temporary appointment is promptly provided to the respondent.

The Standards support an expeditious hearing, the use of a protective order in lieu of a temporary guardian or conservator appointment where appropriate, and specific limited powers that expire after 30 days. When the temporary appointment is established, the date for the hearing on the proposed permanent guardianship or conservatorship should be scheduled, at which time the temporary appointment will lapse. In temporary conservatorship cases, full bonding of liquid assets should be required to protect the financial well-being of the protected person.

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