In Florida, a guardian is defined as a “person who has been appointed by the court to act on behalf of a ward’s person or property, or both.” A guardian is normally appointed by a court (unless a less restrictive alternative is available) when a judge determines that a ward lacks the capacity to “manage at least some of the property or meet at least some of the essential health and safety requirements of the person.”
Generally, the process of appointing a guardian takes about thirty days from the day when an interested person files petitions to determine incapacity and to appoint a guardian, until the final hearing to determine incapacity and appointment of a guardian.
The thirty day process includes, among other things, the appointment of an attorney to represent the alleged incapacitated person and the appointment of an examining committee. The court appointed attorney is charged with protecting the alleged incapacitated person’s due process rights. The examining committee is charged with determining the capacity of an alleged incapacitated person and consists of three medical professionals including a licensed physician.
Upon completion of the examination, the committee members will file a comprehensive report with the Court indicating whether the alleged incapacitated person is capable of exercising specific legal rights. Given the moving parts involved, it is not uncommon for the thirty day process to quickly expand to forty or even fifty days. However, what if during those thirty or more days it becomes evident that the alleged incapacitated person is the victim of exploitation? What if the exploitation is discovered before the initiation of any formal guardianship proceedings?
Allegations of exploitation are not an unlikely scenario as guardianship proceedings are frequently initiated because of alleged exploitation of a person with diminished capacity. Without effective intervention, it may be necessary to take immediate legal action to avoid imminent danger to the alleged incapacitated person’s property or physical well-being. This is accomplished by utilizing a special type of guardianship proceeding known as an “Emergency Temporary Guardianship,” or ETG, as it is commonly called.
Emergency Temporary Guardianship as a Protective Mechanism
An emergency temporary guardianship is considered to be a protective mechanism used in a specific set of circumstances. The process begins when an interested adult files a petition to appoint an emergency temporary guardian. To be classified as an emergency, the petition must allege the presence of an imminent risk of harm to the person or property of an alleged incapacitated person. Elderly exploitation is a prime example, though not the only example, of a situation that includes imminent risk of harm.
Exploitation exists, for example, when a person that stands in a position of trust and confidence with a vulnerable adult and uses that position to knowingly deprive the vulnerable person of funds for the primary benefit of themselves. Exploitation cases are typically categorized as emergencies because the imminent risk of harm is in the form of fraudulent and rapid depletion of the vulnerable person’s existing finances. An emergency temporary guardianship is designed to stop the exploitation in its tracks (if the exploitation is discovered in time) and prevent further damage to the alleged incapacitated person’s financial position.
When is the Emergency Discovered?
Filing a petition to appoint an emergency temporary guardian can coincide with the filing of a petition to determine incapacity if the exploitation is discovered before commencement of formal guardianship proceedings. Guardianships in this scenario can be considered “emergency initiated,” because the emergency triggered the need for a guardian.
On the other hand, a petition to appoint an emergency temporary guardian can also be filed if the exploitation is discovered after the filing of a petition to determine incapacity but before the court has appointed a guardian. This scenario can be considered an “ordinary proceeding emergency” because the emergency arose or was discovered during the course of ordinary guardianship proceedings.
Whether the emergency triggers the need for a guardian or it is discovered during ordinary proceedings, the purpose is the same; to provide immediate protection against an imminent threat of financial and/or personal harm. While protection is the main goal, the process of appointing an emergency temporary guardian is quite different from general guardianship proceedings.
In general guardianship proceedings, the court will appoint a three-member examining committee comprising of at least one physician and two other medical professionals. The committee is required to conduct a comprehensive medical evaluation on the capacity of the alleged incapacitated person. Once complete, the examining committee will file the evaluations stating whether the alleged incapacitated person has, or a lacks, the capacity to make certain decisions.
Due process requires this procedure before a court can make an incapacity ruling and appoint a guardian. The due process requirement for general guardianships is stringent because incapacity is a long-term condition that requires the appointment of a guardian for a considerable amount of time. The time constraints of emergency scenarios typically do not allow for a pre-appointment medical evaluation of the alleged incapacitated person.
The primary focus of emergency temporary guardianship proceedings is determining whether a sufficient emergency exists to warrant immediate appointment of an emergency temporary guardian. Basically, the court is appointing a guardian prior to any finding of incapacity (but incapacity is suggested). The seriousness of the emergency is thought to be enough to override the need for an incapacity ruling prior to guardian appointment.
However, because emergencies are usually temporary, an emergency temporary guardian is typically appointed for a much shorter period of time as compared to a general guardian. Regardless of whether the guardianship is an emergency temporary guardianship or general guardianship, the court is required to appoint an attorney to represent the alleged incapacitated person.
The Court Appointed Attorney
In emergency temporary guardianships as well as general guardianships, the court appointed attorney’s broad function is to represent the interests of the alleged incapacitated person. More specifically, the attorney’s most important function is ensuring the protection of the alleged incapacitated person’s due process rights.
Other responsibilities of the court appointed attorney include meeting with and explaining to the alleged incapacitated person the nature of the proceedings taking place, explaining what it means to have a guardian appointed for him/her, and ascertaining the alleged incapacitated person’s position on having a guardian appointed to act on their behalf.
Further, the attorney should work with and receive input from, the alleged incapacitated person’s family (without violating the confidences and privileges of the attorney/client relationship). Given the time constraints of emergency temporary guardianships, however, it may be impractical for an attorney to have correspondence with family members prior to an emergency guardian’s appointment.
The Appointment of an Emergency Temporary Guardian
After the filing of a petition to appoint an emergency temporary guardian, the court will hold a hearing to determine whether the allegations show sufficient evidence of imminent danger to the alleged incapacitated person’s property or person unless immediate legal action is taken. If the court finds sufficient evidence of imminent danger, it will enter an order appointing an emergency temporary guardian.
The court will also issue a document called “letters of emergency temporary guardianship” that explicitly specify the authority and responsibility of the emergency temporary guardian. The court may also require the emergency guardian to post a bond, which is an insurance type instrument designed to reimburse an alleged incapacitated person in the event a guardian mismanages or steals assets.
Among the authority exercisable by an emergency temporary guardian is the ability to seek injunctive relief. The emergency temporary guardian also has the authority to access and review the alleged incapacitated person’s financial information including previous monetary transactions. Injunctive relief is an important tool in exploitation cases as it enables a guardian to obtain a court order instructing financial institutions to freeze all pending and future distributions from the alleged incapacitated person’s accounts; this should effectively stop an ongoing exploitation scheme. Financial review authority is also important in exploitation cases as it enables the emergency guardian to review previous financial statements to determine the length and severity of the financial exploitation.
The emergency temporary guardian’s authority lasts for ninety days from the date of appointment. At the end of the ninety days, the emergency guardian’s authority will automatically expire unless there is a showing that the emergency still exists, in which case the guardian’s authority can be extended for an additional ninety days.
If the initial emergency no longer exists, the emergency guardian will be discharged or, if an examining committee makes a suggestion of incapacity, the emergency guardian will most likely be appointed to act as general guardian. With the appointment of a general guardian, the emergency temporary guardianship ends and a general guardianship begins.
Emergency temporary guardianship is designed to provide protection for society’s most vulnerable. Nearly all aspects of emergency temporary guardianship provide a measure of protection for the alleged incapacitated person. From the court appointed attorney who protects the alleged incapacitated person’s due process rights to the emergency guardian who provides protection from ongoing exploitation, the protection provided by emergency temporary guardianship makes such guardianship an effective tool in the ongoing fight against elder exploitation.