Emergency Guardianship Attorney

Guardianship is a special legal relationship that allows one person to make important decisions on behalf of someone who has become physically or mentally incapacitated. In Florida, guardianship plays a crucial role in enabling families to manage the affairs of vulnerable loved ones and ensure that their best interests are always protected. However, guardianship appointment is a court-supervised process that can take several months to conclude – a long time to wait when a loved one’s incapacity is placing them at imminent risk of harm. Thankfully, Florida law recognizes that in certain circumstances, a guardian may need to be appointed on an emergency basis, which is a much faster process.

If you are worried about a loved one’s well-being and are uncertain whether emergency guardianship is necessary, the experienced emergency guardianship attorneys at Astor Simovitch Law are here to help you navigate your next steps.

An Overview Of Florida Guardianship Law

In Florida, a guardian may be appointed to manage the personal and/or financial affairs of a person who has lost the capacity to make sound decisions in their own best interests. The incapacitated person is referred to as the guardian’s ‘ward’. Each guardianship appointment is unique, in the sense that the court can precisely delineate the kinds of decisions the guardian is entitled to make on their ward’s behalf. This will depend on the nature of the ward’s incapacity – some guardians are only empowered to make decisions concerning their ward’s property and financial affairs, whereas others may be entitled to make decisions concerning their ward’s financial affairs, medical treatment, place of residence, employment, and so on.

In standard guardianship appointment processes, the person seeking appointment as guardian must file a ‘petition to determine incapacity’ and a petition for Permanent Guardianship. Preparing the petitions requires legal expertise, and the person seeking appointment as guardian must retain counsel to represent them throughout the process. The petition to determine incapacity essentially asks the court to appoint ane examining committee to examine the subject of the petition – the alleged incapacitated person (AIP) – to determine whether the person no longer has the capacity to manage their affairs. The panel (which must include at least one physician and one psychiatrist) will examine the AIP and file a report with the court indicating whether a guardianship appointment is required.

What Is Emergency Guardianship?

When the AIP is at imminent risk of harm, the person seeking appointment as guardian can simultaneously file a petition to be appointed as an emergency temporary guardian. Emergency guardianship proceedings follow an abridged process – a hearing to determine the petition for emergency guardianship can be held as little as 24 hours after notice of the petition is given to the AIP.

The court will decide whether to appoint an emergency guardian based on the allegations and evidence included in the petition alone, and without any examination of the AIP having taken place. Emergency guardianship lasts for a maximum of 90 days. Ideally, by the end of this period, the petition to determine incapacity would have been heard and decided, and a permanent guardianship appointment would have been made.

In What Circumstances Can An Emergency Guardian Be Appointed?

Emergency guardianship constitutes a significant curtailment of a person’s rights, as they are deprived of the ability to make decisions for themselves without a medical examination having taken place. For this reason, emergency guardianship appointments may only be made in very limited circumstances. In essence, an emergency guardian may only be appointed when there is an imminent danger that the physical and or mental well-being of the person will be seriously compromised, or that their property is at risk of being wasted or misappropriated, unless an emergency guardian is immediately appointed. Typical circumstances in which this kind of intervention may be required include:

• Mental health emergency: When a person’s mental health has deteriorated to such an extent that they are threatening to self-harm or harm those around them, or they have entered psychosis, emergency guardianship may be appropriate.
• Advanced substance use disorder: Emergency guardianship can be used in conjunction with Marchman Act proceedings to facilitate a person’s entry into treatment in circumstances where their addiction has reached such a stage that their physical and mental health is at serious risk.
• Sudden illness or brain injury: If a person suffers serious brain trauma through an accident, or loses the ability to look after themselves due to the rapid advance of physically or mentally incapacitating illness (such as motor neuron disease), an emergency guardianship appointment may be necessary.
• Rapid cognitive decline: When an elderly person begins to experience rapid cognitive decline, for example due to an aggressive form of Alzheimer’s, an emergency guardianship appointment should be sought.

In addition to any of the circumstances above, if an apparently incapacitated person is about to waste or give away their assets (often as a result of another person’s manipulation), their family may have grounds for petitioning for emergency guardianship.

The Process For Obtaining Emergency Guardianship

Florida guardianship law is both substantively and procedurally complex, and this complexity increases when an emergency guardianship petition is filed simultaneously with a petition to determine incapacity. A reputable emergency guardianship attorney will help your family to navigate the following stages of the emergency guardianship appointment process:

1. Consultation

Your attorney will consult with you in detail to understand the nature and extent of your loved one’s incapacity, and the degree of harm that they will be exposed to if no action is taken immediately. At this stage, they will also discuss with you any concerns or questions you may have about the guardianship process in general.

2. Preparing petitions

Once you have determined that emergency guardianship would be in your loved one’s best interests, your attorney will draft the necessary petitions and collate relevant evidence to support them. This may include witness statements from friends or family members, as well as medical records or other documentary evidence that supports the allegation that your loved one is incapacitated and in danger of harm if a guardian is not appointed as soon as possible.

3. Liaison with court officials and AIP’s representatives

Your attorney will also take care of the practicalities of arranging a hearing date, ensuring that your loved one is given proper notice of the petition, and corresponding with court officials as necessary to take care of any administrative details.

4. Representation at hearings

The court hearing is a crucial step in the emergency guardianship appointment process. Your attorney will draw on legal argument and the evidence included in the petition to persuade the court that emergency guardianship is justified in the circumstances. They will also answer any questions the court may have about your suitability to be appointed as guardian.

Following your appointment as emergency guardian, your attorney will continue to liaise with the court in preparation for the hearing to determine the incapacity petition. Should this process take longer than expected, they can also help you to apply to extend your emergency guardianship.

What Are The Criteria And Responsibilities Of An Emergency Guardian?

To qualify for appointment, the emergency guardian must be an adult,,, must not be a convicted felon, and must be able to carry out the duties of guardianship. A guardian does not need to be related to their ward, although often family members are appointed as guardians.

Being appointed as a guardian is a major responsibility. Guardians are required to file a report with the court following the expiration of the emergency guardianship, describing the major decisions they took in respect of their ward. Permanent guardians appointed on a long-term basis must file yearly reports with the court, which describe among other things the state of the ward’s mental and physical health, any changes to their condition and needs, a verified inventory of their ward’s property, and so on. Guardians usually retain the services of a guardianship attorney to help them ensure that their reports are correctly prepared and that they are properly discharging their duties as guardian. In the event that you are required to make a difficult decision on your loved one’s behalf during your guardianship appointment, your guardianship attorney will be able to provide you with legal advice to guide your decision.

Experienced Emergency Guardianship Attorneys Are Here To Help You Protect A Vulnerable Loved One

Emergency guardianship arrangements are a vital tool for protecting vulnerable loved ones, but the legal process to create them can be daunting and complicated. The exceptional guardianship attorneys at Astor Simovitch Law are here to help you navigate this complex process, ensuring that your loved one’s best interests are protected at every stage.

With our outstanding legal support behind you, you will have peace of mind that you are making the best decision for your loved one. We are always on standby to help Florida’s families in their hour of need, so don’t hesitate to contact us today at 561-419-6095 to schedule an emergency consultation.