Can I Establish a Guardianship On Short Notice in New York?
If you’re like most people, you’ll do everything in your power to protect your loved ones. Unfortunately, sometimes, a medical crisis, unsafe living situation, or suspected financial exploitation can leave families feeling as though there is no time to wait through an ordinary court proceeding, and in these cases, the most appropriate route may be seeking an emergency guardianship. Continue reading and reach out to a knowledgeable Rockland County guardianship lawyer from The Law Office of Peter A. Hurwitz, PLLC to learn more about how we can help you establish a guardianship on short notice and ensure your loved one receives the assistance they need. Here are some of the questions you may have:
What Is an Emergency Guardianship in New York?
An emergency guardianship is essentially a temporary protective arrangement that may be established while an Article 81 guardianship case is still pending. Under New York Mental Hygiene Law § 81.23, a court may appoint a temporary guardian when the case begins or at any point before a permanent guardian is appointed.
Generally, emergency guardianship relief may be considered when there is a reasonably foreseeable danger involving:
- The health or well-being of the alleged incapacitated person
- The waste, loss, or misappropriation of the person’s money or property
- The immediate need for certain personal, medical, or financial decisions to be made
Importantly, being appointed as a temporary guardian does not give someone unrestricted control over every aspect of another person’s life. Instead, the court will outline the exact powers that the temporary guardian may exercise, and those powers should be limited to what is actually necessary under the circumstances. Additionally, the guardian’s legal authority does not begin until the court issues the temporary guardianship commission.
When Will a Court Grant a Temporary Guardian?
Rather obviously, wanting a guardianship matter resolved quickly is not, by itself, enough to warrant emergency relief. The person requesting the temporary guardianship must present specific facts demonstrating that the alleged incapacitated person, or their property, is likely to face danger in the reasonably foreseeable future. Some examples of circumstances that may justify appointing a temporary guardian are as follows:
- A healthcare emergency: The person is unable to make or communicate important treatment decisions, and there is no properly authorized healthcare agent available.
- An unsafe hospital discharge: The person is about to be released from a hospital or healthcare facility, but no safe living or caregiving arrangement has been established.
- Financial exploitation: Another party is withdrawing funds, transferring property, or otherwise taking advantage of the person’s limitations.
- Neglected expenses: Important housing, medical, insurance, or utility bills are going unpaid because the person can no longer manage their finances.
- A threatened loss of assets: Property may be sold, hidden, transferred, or lost before the court can hold the regular guardianship hearing.
How Can I Establish an Emergency Guardianship on Short Notice?
To request emergency guardianship relief, you will generally need to file an Article 81 petition and specifically request the appointment of a temporary guardian under Section 81.23. The application should describe the immediate problem in detail, identify the specific powers the proposed guardian needs, and include supporting evidence, which may consist of affidavits, medical information, financial records, bank statements, or other relevant documentation.
That being said, an emergency does not eliminate the legal protections afforded to the alleged incapacitated person. Notice must still be provided as directed by the court, an attorney may be appointed to represent the person, and the larger Article 81 case will continue toward a formal hearing. According to New York Courts, the hearing must generally be scheduled no more than 28 days after the judge signs the order to show cause, though a temporary guardian may be appointed before that hearing when immediate intervention is warranted.
If you have any further questions or would like to speak with an experienced attorney about your case, please don’t hesitate to contact The Law Office of Peter A. Hurwitz, PLLC for assistance today.
