Temporary Guardian of an Adult
Many times it is necessary that a temporary guardian be appointed pending the full hearing. The alleged legally incapacitated individual may need immediate medical treatment, placement in a nursing home or some other urgent attention requiring a temporary guardian to be in a position to make personal decisions for the ward. Because of the requirements for notice to the interested parties, such a crisis may need to be handled well before the full hearing can be held.
A Petition For Appointment of Guardian of Legally Incapacitated Individual (PC 625) may include a request that a temporary guardian also be appointed pending the full hearing. A separate petition requesting a temporary guardian may also be filed at any time after the petition requesting a full guardian. However, MCR 5.403 (A) provides that the court may not receive a petition for only a temporary guardian where no petition for a full guardianship is pending.
Once a petition for the appointment of a temporary guardian is received by the probate court, the court will set it for a hearing as soon as the court can accommodate such a hearing. Many courts may hold such hearings within a few hours of receiving the petition as MCR 5.403 (B) allows the court to shorten the period for notice of hearing. The alleged legally incapacitated person must still be served personally with the petition and notice of hearing before the hearing can be held. However, the hearing can be held before other interested persons receive notice.
The court, pursuant to MCR 5.403 (C), will also immediately appoint a guardian ad litem for the purposes of the hearing. The rule reads as follows: "For the purpose of an emergency hearing for appointment of a temporary guardian of an alleged legally incapacitated individual, the court shall appoint a guardian ad litem unless such appointment would cause delay and the alleged legally incapacitated individual would likely suffer serious harm if immediate action is not taken." The rule makes it clear that the court must always make every effort to appoint a guardian ad litem before hearing a petition for a temporary guardian. The rare exception is a situation where a guardian ad litem can not be found and the situation requires immediate action to prevent serious harm to the ward. The guardian ad litem is required to visit the alleged legally incapacitated individual, report to the court and take any other action as directed by the court.
At the hearing the court will hear testimony from the petitioner and others who may wish to testify. It will also receive the report and recommendation of the guardian ad litem. Before it can appoint a temporary guardian, it must find by clear and convincing evidence two distinct things. First, the person is impaired to the extent that the person lacks sufficient understanding or capacity to make or communicate informed decisions concerning. Second, an emergency exists and no other person appears to have authority to act in the circumstances. If the Court appoints a temporary guardian by signing Order Appointing Temporary Guardian of Legally Incapacitated Individual (PC 632), it must specify in that order the powers and responsibilities the temporary guardian shall have. The temporary guardian will be allowed to qualifying by filing an Acceptance of Appointment (PC 571). Once the Acceptance of Appointment is filed, the court will issue Letters of Guardianship (PC 633). The Letters will also contain the restrictions on the temporary guardian's powers and responsibilities. If a temporary guardian is appointed, the court must schedule the full guardianship hearing within 28 days of such appointment. If the request for a temporary guardian is denied, the 28 day requirement does not apply.