An Overview of the Process
By: Jennifer L. Lile, Esq.
Published in the March/April 2006 Issue of
Canton/Akron Edition of MD News Magazine
The appointment of a guardian for a person in emergent circumstances is distinctly different from the legal process of a standard guardianship. It is especially imperative for medical practitioners to be aware of the process as they are far more likely to serve as the front line of contact with such individuals at the critical point when medical decisions are required.
The authority for the Probate Court to appoint an emergency guardian is found in R.C. §2111.02(B)(3). In order for the court to act, it must be established that: (1) an emergency exists, and (2) it is reasonably certain that immediate action is required to prevent significant injury to the person or estate of a minor or incompetent adult. In other words, there must be a risk of the person suffering substantial, imminent physical or financial harm. An “emergency” generally refers to a life-threatening situation, such as the need for limb amputation due to gangrene. Elective surgeries do not qualify and it is never an “emergency” to terminate life. A comprehensive doctor’s statement is the primary piece of evidence used by the court in making the determination.
Unlike standard guardianship which requires notice to be served seven days prior to the hearing, the court may act without notice and without a formal hearing by either issuing an order to prevent injury, or appointing an emergency guardian for a maximum of seventy-two hours (excluding weekends and holidays). The emergency guardian’s authority is limited only to those powers that are necessary to deal with the imminent harm. A copy of the court’s order must be served on the ward as soon as possible.
“Emergency guardianship” should be distinguished from other somewhat similar legal proceedings including “interim guardianship” or “adult protective services.” An interim guardianship typically arises where guardianship is already established, but the guardian, for whatever reason, ceases to serve. Here the court can appoint an interim guardian without notice to the ward, but such appointment may last for a maximum of fifteen days. See R.C. §2111.02(B)(2). Adult Protective Services fall within the purview of R.C. 5101 and are limited in their application to adults age sixty or older. Typically the adult who is the object of an APS petition is arguably competent, but in an unsafe environment, whereas the prospective ward who is the object of an emergency guardianship application is arguably not competent to make important medical decisions but is in a safe environment such as a hospital. By understanding the process, doctors can more quickly meet the needs of their patients who lack the capacity to make medical decisions and who need a court-appointed guardian to provide informed consent.
NOTE: This general summary of the law should not be used to solve individual problems since slight changes in the fact situation may require a material variance in the applicable legal advice.
Overview of the Emergency Guardianship Processhttp://www.kwgd.com/overview-emergency-guardianship-process