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Emergency Guardianships

In two situations it is necessary to obtain an emergency guardianship: (1) when a parent refuses to authorize necessary care for a minor child and (2) when an adult refuses care in a situation in which the health care provider believes the refusal should not be honored. In both situations, the care at issue must be necessary to save life or limb or to prevent serious permanent injury. If the care is for a minor condition or has little hope of benefiting the patient, the patient's or parent's wishes should be heeded while applying for a guardianship on a nonemergency basis.

In an emergency guardianship, the judge appoints a temporary guardian for the patient. The appointment may be made over the telephone if the hospital has previously arranged a protocol with the appropriate judges. This protocol must address the care that is needed, the consequences of delaying the care while a hearing is scheduled, and an explanation of why the patient or parent will not consent to the care. Ideally, the patient will be examined by an independent physician who can certify that the care is needed to preserve the patient's life or limb. The judge will often speak to the parents or the patient, if possible.

If the judge determines that an emergency guardianship is warranted, a temporary guardian will be appointed. The judge will usually limit the scope of the guardian's authority to consenting to care that is needed to prevent permanent harm or death. This guardian may be a hospital administrator, but it is preferable to appoint a person who is independent of the hospital and health care providers. The temporary guardian serves until the court can have a hearing with all the concerned parties. The hearing will be held as soon as the parties can be notified and a courtroom scheduled, sometimes within 24 hours.

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