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Emergency Temporary Guardianship

Written by on May 23, 2011| Posted in: Guardianship Litigation

Elder Law Concepts is not always for the Elderly.

 

In some cases, a parent may see their child go through a sudden, unexpected fight with cancer; a brother may be trying to take advantage of his wealthy but impaired sibling by stealing his financial assets; or a daughter might have witnessed the advisors of her mentally incompetent mother conspiring to misappropriate her assets.   There may be circumstances where immediate action is necessary in order to protect the health and/or financial welfare of such a person.  In these cases, an adult interested in the welfare of a loved-one may wish to petition the court for an emergency temporary guardianship (ETG).  While, the typical ETG is used for incapacitated senior citizens, there are scenarios with teenagers and other young adults who may be abusing drugs and/or alcohol as to warrant the imposition of an emergency temporary guardianship. 

 §744.3031 (1), Florida Statutes, states as follows regarding the requirements for the appointment of an emergency temporary guardian:

The court must specifically find that there appears to be imminent danger that the physical or mental health or safety of the person will be seriously impaired or that the person’s property is in danger of being wasted, misappropriated, or lost unless immediate action is taken. 

If appointed with the task of being the emergency temporary guardian, this guardian would be required to take an oath to faithfully perform the duties of a regular guardian.  This temporary guardianship will last for 90 days or until a permanent guardian is appointed, whichever comes first.  Such duties would include the handing of the ward’s finances, the making of medical decisions if no healthcare surrogate had been nominated, and the overall maintenance of the ward’s affairs.  Additionally, the emergency temporary guardian must file a final report of the ward’s financial status no later than 30 days after the expiration of this appointment.    

The most important factor for the court to assess in deciding whether an emergency temporary guardian is necessary is how apparent the “imminent danger” actually is to the person in question.   

The interpretation and application of “imminent danger” is extremely subjective and varies on a case-by-case basis.  Although case law is rather bare on the subject, the court in Batzle v. Baraso, 776 So.2d 1107 (Fla. 5th DCA, 2001) approved the appointment of an emergency temporary guardian when the ward was diagnosed with a progressive form of cancer.  In this case, the appointment was approved even though there was no adjudication that the ward was mentally incompetent.  The court in Borck v. Borck, 906 So.2d 1209 (Fla. 4th DCA, 2005) authorized the appointment of an emergency temporary guardian after finding that the ward was suffering from Alzheimer’s disease, was legally blind, and was hearing impaired.  In addition, the petitioner made allegations that the ward was being abused by the respondent and that this abuse was interfering with the nursing staff’s ability to properly care for the ward.

It is always difficult to see a loved-one who is physically or mentally suffering; and it is even worse to see others trying to take advantage of that illness for their own personal or financial gain.  Depending on the specific circumstances, the appointment of an emergency temporary guardian can be a very useful tool to help prevent such a misappropriation of a love-one’s assets and/or protect the ward’s physical health and well-being.

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