(A)The process for emergency orders without notice is as follows:
(1)Emergency orders without notice must not be issued unless the moving party files a summons, verified petition, notice of and motion for emergency relief and hearing with any available supporting affidavit(s), and any other document required by the court. The verified petition, motion, and affidavits shall set forth specific facts supporting the allegation that an immediate and irreparable injury, loss, or damage will result before notice can be served on adverse parties and a hearing held pursuant to subsection (B).
(a)If emergency relief is requested, the moving party must present evidence of the emergency and of the individual's incapacity to the court's satisfaction including, but not limited to, an affidavit from a
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(A) The process for emergency orders without notice is as follows: (1) Emergency orders without notice must not be issued unless the moving party files a summons, verified petition, notice of and motion for emergency relief and hearing with any available supporting affidavit(s), and any other document required by the court. The verified petition, motion, and affidavits shall set forth specific facts supporting the allegation that an immediate and irreparable injury, loss, or damage will result before notice can be served on adverse parties and a hearing held pursuant to subsection (B). (a) If emergency relief is requested, the moving party must present evidence of the emergency and of the individual's incapacity to the court's satisfaction including, but not limited to, an affidavit from a physician or nurse practitioner, or at the discretion of the court, a physician assistant or psychologist, who has performed an examination within thirty days prior to the filing of the action. Additionally, the moving party shall file a motion for the appointment of counsel if counsel has not been retained for an alleged incapacitated individual, and a motion for the appointment of a guardian ad litem. (b) If the emergency relief requested is an order for: (i) appointment of a temporary guardian, conservator, guardian ad litem, or other fiduciary; or (ii) the removal of an existing guardian, conservator, or other fiduciary, and the appointment of a substitute, then the moving party must submit evidence of the suitability and creditworthiness of the proposed fiduciary. (2) If the motion for emergency relief is not granted, the moving party may seek temporary relief after notice pursuant to subsection (B) or proceed to a final hearing. The court may, in its discretion, treat a motion for emergency relief as a motion for temporary relief as set forth in subsection (B). (3) If the motion for an emergency relief is granted, the date and hour of its issuance must be endorsed on the order. The date and time for the emergency hearing must be entered on the notice of hearing and it must be no later than ten days from the date of the order or as the court determines is reasonable for good cause shown. (4) The moving party shall serve all pleadings on the alleged incapacitated individual, ward or protected person, counsel for the alleged incapacitated individual, guardian ad litem, and other adverse parties immediately after issuance of the emergency order. (5) If the moving party does not appear at the emergency hearing, the court may dissolve the emergency order without notice. (6) Evidence admitted at the hearing may be limited to verified pleadings and any supporting affidavits. Upon good cause shown or at the court's direction, additional evidence of incapacity and the nature of the emergency may be admitted. (7) On two days' notice to the party who obtained the emergency order without notice or on such shorter notice to that party as the court may prescribe, an adverse party may appear and move for the emergency order's dissolution or modification, and in that event, the court shall proceed to hear and determine the motion as expeditiously as possible and may consolidate motions. (8) No emergency order for conservatorship must be issued except upon the court receiving adequate assurances the assets will be protected, which may include providing of security by the moving party in a sum the court deems proper for costs and damages incurred by any party who without just cause is aggrieved as a result of the emergency order. A surety upon a bond or undertaking submits to the jurisdiction of the court. (9) The court may take whatever actions it deems necessary to protect assets including, but not limited to, issuing an order to freeze accounts. (10) Upon the hearing on the ex parte order, if the court continues its prior emergency order, the order must be for a duration of no more than six months unless otherwise specified in an order. A hearing held for the purpose of the issuance of a final order shall be de novo as to all issues. (11) In an emergency, the court may exercise the power of a guardian with or without notice if the court makes emergency findings as required by the Adult Health Care Consent Act, Section 44-66-30. (B) The process for temporary orders and temporary hearings with notice is as follows: (1) A temporary order must not be issued without proof of service on a notice of hearing to the alleged incapacitated individual, ward or protected person, counsel for the alleged incapacitated individual, the guardian ad litem, and other parties. (2) A temporary hearing may be scheduled upon the filing of the summons, motion for temporary hearing with any supporting affidavits, a verified petition, and motions for the appointment of counsel and guardian ad litem if none have been previously appointed or retained. The temporary hearing may not be held fewer than ten days from service on all interested parties or as the court determines is reasonable. (a) If temporary relief is requested, the moving party shall present evidence of the need for temporary relief and of incapacity, including without limitation, an affidavit from a physician or nurse practitioner or, at the discretion of the court, a physician assistant or psychologist, who has performed an examination within the previous forty-five days. (b) If the temporary relief requested is an order for: (i) appointment of a temporary guardian, conservator, guardian ad litem, or other fiduciary; or (ii) removal of an existing guardian, conservator or other fiduciary, and the appointment of a substitute, in addition to the requirements set forth in subsection (B)(2) and (a), as applicable, the moving party shall submit evidence of the suitability and creditworthiness of the proposed fiduciary. (3) If the motion for temporary relief is not granted, the action will remain on the court docket for a de novo hearing on the underlying petition. (4) If the court determines that the motion for temporary relief should be set for a hearing, the court shall enter a date and time for the temporary hearing on the notice of hearing. (5) Temporary orders resulting from the hearing shall expire six months from the date of issuance unless otherwise specified in an order. (C) After preliminary hearing upon such notice as the court deems reasonable, and if the petition requests temporary relief, the court has the power to preserve and apply the property of the alleged incapacitated individual as may be required for his benefit or the benefit of his dependents. Notice of the court's actions shall be given to interested parties as soon thereafter as possible. (D) A hearing concerning the need for a protective order or the appointment of a permanent guardian or conservator must be a hearing de novo as to all issues before the court.