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Gaining emergency guardianship of an incapacitated adult

On Behalf of | Jan 24, 2020 | Estate Planning

Georgia residents may name a health care agent in their advance directive for health care so that this person can make decisions for them in a situation where they become incapacitated, according to Emory Healthcare. If this aspect of the estate plan is not in place, someone still may need to make medical decisions on another’s behalf in the event of a severe and sudden injury or illness. 

Without the incapacitated person’s directive, how does someone step in to take on those potentially life-altering medical decisions? 

Emergency guardianship petition 

According to the Supreme Court of Georgia, the person who is willing to perform the role of guardian to a ward in an emergency files a petition with the court. The petition includes information such as the relationship of the emergency guardian to the potential ward and the reason the emergency guardianship is necessary. 

Pre-hearing emergency guardianship 

The law calls for a hearing, but if the situation is so dire that the incapacitated person needs a guardian immediately, the court may designate a pre-hearing emergency guardian. A physician or social worker with a current license to practice must provide an affidavit stating that a delay could cause serious, irreparable harm. 

Even though the guardian may make medical decisions in this case, he or she may not make any withdrawals from the ward’s accounts or spend any of the ward’s funds. The court may require the pre-hearing emergency guardian to post a bond, and he or she must take an oath. 

The emergency guardianship hearing 

At the hearing, the potential guardian must prove through convincing evidence that the proposed ward really is incapacitated or unable to communicate his or her health care decisions and that the proposed ward faces serious harm without the emergency guardian’s assistance.