June 11, 2013
Authored by: Luke Lantta
Few appellate opinions give us a window into contested guardianship proceedings. Fewer still give us insight into what it takes to obtain an emergency guardianship. In In the Interest of Farr, the Georgia Court of Appeals let us know that the “emergency” needed for an emergency guardianship needs to be an actual emergency.
St. Joseph’s Hospital in Savannah wanted an emergency guardian for one of its patients, Claudine Tapley Farr. The hospital wanted an emergency guardian appointed to facilitate the patient’s discharge from the hospital. That wasn’t an emergency.
The hospital’s petition was filled with all the stuff you’d expect – affidavits and evaluations from hospital staff, including physicians, alleging that the patient was “incapacitated by reason of end stage Parkinson’s disease, diabetes mellitus, recurring infections, contracted extremities and respiratory failure” to the extent that she lacked “sufficient capacity to make or communicate significant responsible decisions concerning her health or safety,” and that there was “an immediate, clear and substantial risk of death or serious physical injury, illness, or disease unless an emergency guardian is appointed.”
The Georgia emergency guardianship statute, O.C.G.A. § 29-4-14(b)(4), governs the contents of a petition for appointment of emergency guardian and identifies the burden on the petitioner. The statute requires that the petitioner not only plead facts why an emergency guardianship is sought, but the facts pleaded must also establish an immediate and substantial risk of death or serious physical injury, illness, or disease unless an emergency guardian is appointed.
The only “emergency” alleged by the hospital was that it wanted to transfer the patient out of its acute-care facility into what it believed was a more appropriate facility for the lesser-level care the hospital deemed the patient required. This is simply not the “emergency” contemplated by the statute. The appellate court juxtaposed the situation pleaded by the hospital with another case in which an emergency guardian was truly necessary to consent to immediate surgery for an incapacitated person after that person broke a hip in a fall in a nursing home. Here, the facts may well support the appointment of a guardian but there was no emergency requiring appointment of an emergency guardian.