14-5310

14-5310. Temporary guardians; appointment;
notice; court appointed attorney hearings; duties

A. If an alleged incapacitated person has no guardian and an emergency exists or if
an appointed guardian is not effectively performing the duties of a guardian and the
welfare of the ward is found to require immediate action, the alleged incapacitated
person, the ward or any person interested in the welfare of the alleged incapacitated
person or the ward may petition for a finding of interim incapacity and for the
appointment of a temporary guardian. No finding and appointment may be made without
notice, pursuant to section 14-5309, except as provided in subsection B of this section.

B. The court may enter a finding of interim incapacity and may appoint a temporary
guardian without notice to the proposed ward or the proposed ward's attorney only if all
of the following conditions are met:

1. It clearly appears from specific facts shown by an affidavit or by the verified
petition that immediate and irreparable injury, loss or damage will result before the
proposed ward or the proposed ward's attorney can be heard in opposition.

2. The petitioner or the petitioner's attorney certifies to the court in writing
any efforts that the petitioner or the petitioner's attorney has made to give the notice
or the reasons supporting the claim that notice should not be required.

3. The petitioner files with the court a request for a hearing on the petition for
the appointment of a temporary guardian.

4. The petitioner or the petitioner's attorney certifies that that person will give
notice of the petition, the order and all filed reports and affidavits to the
proposed ward by personal service within the time period the court directs but not in
excess of seventy-two hours following entry of the order of appointment.

5. The petitioner files a report from a physician, a registered nurse practitioner
or a psychologist detailing the need for a guardian and the basis for the emergency
unless the report is waived by the court on a showing of good cause by a party to the
action.

C. Unless the proposed ward is represented by independent counsel, the court shall
appoint an attorney to represent the proposed ward in the proceeding on receipt of the
petition for temporary appointment. The attorney shall visit the proposed ward as soon
as practicable and shall be prepared to represent the interest of the proposed ward at
any hearing on the petition.

D. Every order finding interim incapacity and appointing a temporary guardian
granted without notice expires as prescribed by the court but within a period of not more
than thirty days unless within that time the court extends it for good cause shown for
the same period or unless the attorney for the ward consents that it may be extended for
a longer period. The court shall enter the reasons for the extension on the record.

E. The court shall schedule a hearing on the petition for a finding of interim
incapacity and the appointment of a temporary guardian within the time specified in
subsection D of this section. If the petitioner does not proceed with the petition the
court, on the motion of any party or on its own motion, may dismiss the petition.

F. If the court orders the appointment of a temporary guardian without notice, the
ward may appear and move for its dissolution or modification on two days' notice to the
petitioner and to the temporary guardian or on such shorter notice as the court
prescribes. The court shall proceed to hear and determine that motion as expeditiously
as possible.

G. The hearing on a petition for the appointment of a temporary guardian shall be
held in the same manner as a hearing on a preliminary injunction. The court may order
the hearing on the petition for appointment of a permanent guardian to be advanced and
consolidated with the hearing of the petition for temporary appointment. If the court
does not order this consolidation any evidence received on a petition for temporary
appointment that would be admissible at the hearing on a petition for a permanent
appointment becomes part of the record and need not be repeated at a later hearing. This
subsection does not limit the parties to any rights they may have to trial by jury.

H. After notice and a hearing, if the court finds that a temporary guardian is
necessary and the provisions of this section have been met, the court shall make an
appointment of a temporary guardian for a specific purpose and for a specific period of
time of not more than six months unless the court extends this time period for good cause
shown.

I. A temporary guardian is responsible to provide the care and custody of the
ward. The authority of a permanent guardian previously appointed by the court is
suspended as long as the temporary guardian has authority. A temporary guardian may be
removed at any time. A temporary guardian shall make any report the court requires. In
all other respects, the provisions of this title concerning guardians apply to temporary
guardians.