When an individual faces an immediate risk of irreparable harm, it may be possible to appoint an emergency guardian for that individual.
According to Georgia Courts, a person can request the appointment of an emergency guardian for another individual by petitioning the court. The court can only grant the petition and appoint the guarding under certain conditions.
Lack of capacity
The court can appoint a guardian if the proposed ward lacks the capacity to make responsible health and safety decisions on his or her own behalf.
Substantial risk
The court can also appoint an emergency guardian if the proposed ward faces an immediate risk of serious illness, physical injury or death without the appointment of a guardian.
The wording of the law allows the court to appoint an emergency guardian if there is either a substantial risk or a lack of capacity. It also allows the court to appoint an emergency guardian if both circumstances apply at the same time.
Burden of proof
It is up to the petitioner to prove to the court that there is a substantial risk to the proposed ward or that the proposed ward lacks capacity. The court requires evidence that is clear and convincing.
Emergency hearing
The court convenes an emergency hearing to decide whether to appoint a guardian. However, if there is probable cause to believe that the potential harm is so irreparable and the risk so immediate that the proposed ward needs an emergency guardian immediately, it may appoint a pre-hearing emergency guardian to serve until that time.
Whether the proposed ward receives any prior notification of the appointment of a pre-hearing emergency guardian is up to the court’s discretion.
