14-5401.01. Temporary conservators; appointment; notice; hearings

A. If a person allegedly in need of protection has no conservator and an emergency exists or if an appointed conservator is not effectively performing the duties of a conservator and the estate or affairs of the protected person are found to require immediate action, the person allegedly in need of protection, the protected person or any person interested in that person's estate or affairs may petition for a finding of a need for interim protection and for the appointment of a temporary conservator. A finding and appointment may not be made without notice, pursuant to section 14-5405, except as provided in subsection B of this section.

B. The court may enter a finding of a need for interim protection and may appoint a temporary conservator without notice to the person allegedly in need of protection or that person's attorney if all of the following conditions are met:

1. It clearly appears from specific facts shown by affidavit or by the verified petition that immediate and irreparable injury, loss or damage will result before the person allegedly in need of protection or that person'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 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 conservator.

4. The petitioner or the petitioner's attorney certifies that notice of the petition, order and all filed reports and affidavits will be given to the person allegedly in need of protection by personal service within the time period the court directs but not more than seventy-two hours after entry of the order of appointment.

C. Unless the person allegedly in need of protection is represented by independent counsel, the court shall appoint an attorney to represent that person in the proceeding on receipt of the petition for temporary appointment. The attorney shall visit the person allegedly in need of protection as soon as practicable and shall be prepared to represent that person's interests at any hearing on the petition.

D. Every order finding a need for interim protection and appointing a temporary conservator 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 person allegedly in need of protection 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 the need for interim protection and the appointment of a temporary conservator 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 conservator without notice, the person allegedly in need of protection may appear and move for its dissolution or modification on two days' notice to the petitioner and to the temporary conservator, or on such shorter notice as the court prescribes. The court shall proceed to hear and determine that motion as expeditiously as possible. If the person allegedly in need of protection objects to the person who is temporarily appointed, the court may appoint an individual nominated by the person allegedly in need of protection if the person allegedly in need of protection is at least fourteen years of age and has, in the opinion of the court, sufficient mental capacity to make an intelligent choice. The court shall appoint an alternative conservator if available and after finding that the appointment is in the best interest of the person allegedly in need of protection.

G. The hearing on a petition for the appointment of a temporary conservator 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 conservator to be advanced and consolidated with the hearing on 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 conservator is necessary and the provisions of this section have been met, the court shall make an appointment of a temporary conservator for a specified period of time of not more than six months unless the court extends this time period for good cause shown.