The legal landscape of our state has certainly changed since the start of the Coronavirus pandemic. Unfortunately, however, bad things can and do continue to happen to good people during a pandemic. This blog is intended to provide some guidance as to what to expect if you or a loved one needs to go through the emergency guardianship process during this pandemic.
If you want more information on guardianships, emergency guardianships, or the process for either, then check out these articles below:
- The Steps of a Guardianship
- I Have Been Appointed Guardian, Now What?
- The Battle Between a Power of Attorney and Guardianship.
- Juvenile Guardianships and Guardianships of Minors, Part II.
- How Can a Guardian Ad Litem Help Me With the Adult Guardianship Process?
- Becoming A Certified Guardian Under Rule 59, Starting March 1, 2018.
As a brief recap, Order 25 was signed and effective on April 15, 2020. Order 25 declared a statewide emergency for North Dakota’s Judicial Branch. Some results of this declaration were that civil jury trials, criminal jury trials, and guardianship review hearings were suspended until July unless otherwise ordered by the North Dakota Supreme Court. Importantly, however, emergency guardianships and mental health proceedings were not suspended in this declaration. So what does that mean? It means applying for an emergency guardianship just got more complicated.
Just to lay the groundwork for the complications, let’s take a quick look at how an emergency guardianship works from a 10,000-foot view:
- Some medical emergency occurs in which the ill person (referred to as the “ward”) can no longer make decisions for her/himself (vehicle accident, deterioration of mental health, overdose).
- You, as the potential guardian, need power over the ward immediately to gain control of the sick person’s medical, financial, or legal situation (e.g., consenting to surgery, paying bills, or initiating or defending a lawsuit).
- Your attorney applies to the court for emergency guardianship. This application (called a “petition”) is granted by the court usually within 24 hours (assuming you have provided sufficient initial proof of the need for an emergency guardianship and your qualifications to serve as an emergency guardian). The initial grant of an emergency guardianship is referred to as an “order of temporary guardianship” and it lasts for a maximum of 10 days.
- When the Court issues an order of temporary guardianship, then the Court will also appoint a guardian ad litem who is an attorney tasked with interviewing the Ward and providing a recommendation to the court as to whether a guardianship is necessary moving forward.
- Finally, a hearing will be held within 10 days of the court’s temporary guardianship order to confirm whether an emergency guardianship should continue.
Clerk Of Court
Now that we have the general process down, let’s jump into the complications related to the Coronavirus pandemic. First, filing an emergency guardianship is now more complicated. Now, if you have an attorney do this, you will not see much difference. If, however, you file yourself, you will have to contact the Clerk of Court’s office in the county in which you are filing to learn the filing requirements specific to the county. Some courthouses are only allowing the general public to enter the courthouse by appointment. Other courthouses are only allowing documents to be filed by mailing them to the courthouses (a very slow process when you need to move quickly). In addition, some courthouses are allowing applicants to submit their filings via email. The point here is to hire an attorney to help you through this. If you are going to do this without an attorney, then be sure to contact your local Clerk of Court’s Office.
Service On The Ward
Second, after the Court reviews the application and supporting documents and grants the temporary guardianship, then the Ward must be served with the emergency guardianship documents within 48 hours. How are you going to have this done? Keep in mind that many hospitals and long-term care or skilled care centers are absolutely closed to the public and are having reported cases of COVID-19. Neither a nursing home nor a hospital has the right to stop a Ward from being served, but each facility may have a different procedure for accomplishing this. For example, one care facility has mentioned requiring that the Ward be served by having an indoor and outdoor service agent (one person takes the documents to the front door of the facility and a second person already in the care facility will take the documents and serve the Ward). Another care facility required that their in-house attorney review the temporary guardianship order prior to allowing the server to enter the facility (again, you only have 48 hours to serve the Ward). Again, the point here is that you need to be thinking or hire an attorney to be thinking about these extra complications affecting a time-sensitive process.
Interview With The Ward
Third, the guardian ad litem has to interview the Ward in the care facility. As above, this means each care facility will have its own unique process of how this gets done. Some care facilities will only allow telephonic interviews, some require an appointment, and others yet have not determined which procedure they will use. It will be up to you, your attorney, and your experienced guardian ad litem to maneuver around these obstacles.
Finally, we have made it to the hearing, right? Yes. However, even the hearing appears different than pre-pandemic days. For example, many courts are mandating the applicant, attorney, guardian ad litem, and ward appear telephonically for the hearing. This means that you or your attorney need to ensure that everyone who needs to appear for the hearing is aware of the telephonic requirements and has the access or ability to call into the hearing. In addition, you and your attorney need to be thinking about what happens when a Ward demands an in-person hearing.
Emergency guardianship is a vital tool to use in extreme situations. Due to the pandemic, the process for such guardianship has only gotten more difficult. If you need help getting an emergency guardianship over someone or need an experienced guardian ad litem, please contact us!