Guardianship
What is a guardianship?
A guardianship is a protective proceeding in which the court is asked to appoint an individual (or entity) to make decisions and provide care for a minor or an incapacitated adult (known as the “ward”). The court can appoint a guardian for an unmarried minor if all parental rights of custody have been terminated or suspended by circumstances or by prior court order. With regard to an adult guardianship, before making such an appointment, the court must find that (1) the person for whom a guardian is sought is incapacitated; (2) the appointment is necessary to provide for the demonstrated needs of the incapacitated person; and (3) the person’s needs cannot be met by less restrictive means, including the use of technological assistance.
If you are seeking appointment as a guardian, you will be required to complete an affidavit which the court may require you to furnish a full set of fingerprints to enable the court to conduct a criminal background investigation and you will have to pay the cost for this. By accepting the appointment as guardian, you are consenting personally to the jurisdiction of the court in any proceeding relating to the guardianship.
Generally, a guardian has the same powers, rights and duties with respect to the ward that a parent has with respect to an unemancipated minor child. A guardian makes personal decisions for the ward with regard to living arrangements, education, and social activities. A guardian is responsible to make arrangements for the ward’s medical or other professional care, counseling, and mental health treatment outside of a locked psychiatric or mental health facility. Under certain circumstances, a guardian can obtain authority to arrange for mental health treatment care and authority within a locked setting. A guardian must take reasonable care of the ward’s belongings and commence protective proceedings if the ward has property which is in need of protection.
Sometimes a guardianship can be avoided for an adult who has already executed a valid health care power of attorney, mental health care power of attorney, and a living will (for end of life decisions). However, the adult must have been competent to understand the powers of attorney when executed. It should be noted that even if an adult has powers of attorney and a living will, he or she could still be subject to a guardianship proceeding. This is particularly true if someone believes the person nominated as the agent in a heath care power of attorney is not acting in the best interests of the incapacitated person. A guardianship will invalidate pre-existing powers of attorney.
There are many other duties and responsibilities that a guardian has with respect to a ward. If you have questions or want help determining whether a guardianship is right for your loved one, we know how to analyze the situation. If a guardianship is warranted, we can prepare and file the correct documents and conduct the court hearing to secure your appointment.
I have a child who is 17 or older and cannot make good decisions. Can I be appointed as guardian?
It depends. When someone reaches the age of 18, they are legally an adult. Arizona law presumes that every adult is capable of making responsible decisions regarding himself or herself, unless a court determines otherwise. If this person is incapacitated, a guardianship would be appropriate. It’s important to know that absent an incapacity, the court won’t grant a guardianship just because someone is making foolish or irresponsible decisions. The guardianship process can take several months. If you want a seamless transition, you should consider beginning this process as your child nears 17 ½ years old. Our legal team stands ready to help you determine the best course of action moving forward. We have worked in the probate court system since 1986. Our attorneys are experienced and well-respected in the probate bar. We know how to navigate that system and are just a phone call away at (480) 821-1012.
What does “incapacitated” mean?
According to Arizona law, a person is “incapacitated” if they are impaired due to mental illness, mental deficiency, a mental disorder, a physical illness or disability, chronic use of drugs, chronic intoxication or other cause, to the extent that this person does not have sufficient understanding or capacity to make or communicate responsible decisions concerning himself or herself. A developmental disability or mental illness is not, by itself, enough to prove that the court should declare a person incapacitated.
Will a guardianship create unreasonable limits on my loved one?
The court encourages the development of maximum self-reliance and independence of the incapacitated person. Therefore, a guardianship can be limited or general, depending on the demonstrated needs of the individual. The court can also specify time limits on the guardianship and limitations on the guardian’s powers.
I have an elderly parent who is not making good decisions and not taking good care of himself/herself. Can I be appointed as guardian?
If your loved one meets the criteria for an “incapacitated adult”, the court has the power to appoint a guardian. According to Arizona law, a person is “incapacitated” if they are impaired due to mental illness, mental deficiency, a mental disorder, a physical illness or disability, chronic use of drugs, chronic intoxication or other cause, to the extent that this person does not have sufficient understanding or capacity to make or communicate responsible decisions concerning himself or herself. It is important to note that someone may not be truly “incapacitated” simply because they make poor decisions or exhibit poor judgment. Sometimes someone who is mentally healthy could require a guardianship due to physical incapacitation.
There must be proof that the person meets the legal definition of “incapacitated” and if a generalguardianship is requested, other alternatives must be explored. We can to help you determine the best course of action moving forward. We have worked in the probate court system since 1986. Our attorneys are experienced and well-respected in the probate bar. We know how to navigate that system.
My friend’s spouse died and she has been living alone. She recently lost touch with reality and is not taking care of herself. Is there something I can do to help her?
If your friend has lost the ability to make or express rational decisions that are necessary for her own well-being and is not taking care of herself, you should first determine whether she has valid powers of attorney in place. If not, a guardianship may be appropriate. Before the court will grant a guardianship, however, there must be sufficient evidence that she is incapacitated according to Arizona law.
I have a loved one who was placed in a locked psychiatric setting and I only have three days to get a guardianship. Can this be done?
Yes, in some instances. The court can enter a finding of interim incapacity and appoint a temporary guardian. Depending on the situation, this can be done with or without notice. It is possible to get an emergency hearing for the temporary appointment of a guardian if immediate and irreparable injury, loss or damage will result before the proposed ward or their attorney can be heard in opposition. With the proper evidence which establishes the existence of an emergency, the court can grant relief. If you need help on an emergency basis, we can help.
I want to move an Arizona guardianship to another state. Or, I want to move a guardianship from another state to Arizona. Can this be done?
Yes. It’s a multi-step process which can be complicated. The jurisdiction of both states is involved. The state where the guardianship exists must be informed of the proposed move and the receiving state must agree to accept jurisdiction. We handle cases involving both of these situations, which vary depending on the facts and the particular states that are involved.
I have been asked to take custody of some minor children while the parents are unavailable. Do I need a guardianship?
Not necessarily. Depending on the circumstances, we can prepare documents which will create a special delegation of the parents’ authority so you can provide for the care and control of the children for up to six months. That time frame can be extended, if needed. Again, this depends on the facts but we have successfully made this arrangement on numerous occasions and it has worked quite well.
