With the Coronavirus pandemic spreading, courts are seeing an increase in emergency requests for temporary guardianship of an incapacitated person. Courts in Massachusetts are closed to the public until May 4th. However, hearings are continuing to be held virtually on emergency matters. If you have a family member who is incapacitated due to illness or injury, the following is an overview of the process for an emergency request for temporary guardianship of an incapacitated person.
The person who wishes to be named guardian of an incapacitated person (also known as the petitioner) must file a petition for temporary guardianship in Probate Court in the County where the incapacitated person lives. There are several things that must be included with that petition:
- Temporary Bond
- Court Activity Record Information –
This allows the courts to pull and review a complete court and criminal history for you, the petitioner. In an effort to protect incapacitated persons, they will look to confirm that you have no prior history of abuse or neglect of an incapacitated person. Likewise, restraining orders and similar history will raise a red flag and decrease the chances of approval for guardianship.
- Motion for Guardianship –
The motion must explain why you are seeking emergency guardianship including the risk should it not be approved. You must also detail exactly what responsibilities you wish to be given, i.e. authority to manage finances, make health care decisions, etc. Any existing health care proxies and power of attorneys should be mentioned as well.
There are additional requirements beyond those listed above. Given the complexity of court processes, it is recommended that you request assistance from a local attorney with submitting the above information and attending any virtual hearings.
Approval of Emergency Request for Temporary Guardianship of an Incapacitated Person
If the emergency request for temporary guardianship of an incapacitated person is approved, you (as the petitioner) must notify the incapacitated person and any other related parties within 7 days. Temporary guardianships are valid for 90 days and will cover only the specific responsibilities noted in the petition. Petitioners must request additional court orders for anything beyond the scope of their authority as stated in the initial appointment. Also, future hearings must be requested for extensions of the guardianship beyond the 90 days.