Guardianships

Unfortunately, many people have not planned ahead and do not have life planning documents, such as powers of attorney or a trust. If they are already incapacitated, it is too late to have documents prepared. If someone becomes incapacitated and cannot make health care or placement decisions for themselves, sometimes requesting the court to appoint a guardian over the person is the only answer. Guardianship has been a major area of practice in our firm. We have extensive experience in Title 14 guardianship proceedings, including appointment of guardians with “mental health” powers and emergency petitions.

When is a guardianship necessary?

When a person is unable to make decisions for him/herself, someone else will need to assume responsibility for making health care decisions, for where the person should live, and for other personal decisions. A guardianship for example can become necessary in order to make non-medical residential placement decisions when there is a family conflict, or if the incapacitated person refuses treatment. A guardianship may also become necessary to file tax returns. A guardian has all the duties and responsibilities that a parent has with respect to a minor child, but for the most part a guardian cannot handle the ward’s finances.

What if I have power of attorney?

If you have a valid Healthcare Power of Attorney signed by the incapacitated person at a time when they had capacity, in most cases you do not need to obtain guardianship over the person.

Who can file for guardianship?

Any person interested in the incapacitated person’s welfare may petition for the appointment of a guardian.

What is a guardian?

A guardian is someone appointed by a court to make all personal decisions related to a person who is incapacitated as result of a mental or physical disability.

All guardians must be appointed by the court.

What is an incapacitated person?

Before the court can appoint a guardian, the court must first determine that the proposed ward is an “incapacitated” person. An incapacitated person is a person who is unable to make or communicate responsible personal decisions due to a mental or physical disability, chronic use of drugs, chronic intoxication or other cause. Once the court determines that the person is incapacitated to make or communicate responsible personal decisions, the court may then appoint a guardian to make those decisions.

Who may be appointed guardian?

Any competent person may be appointed guardian. The following persons have priority for appointment:

  • A conservator of the person or a court appointed fiduciary;
  • A party named by the incapacitated person, if the court determines the ward has sufficient capacity to make an intelligent choice;
  • A person named in the incapacitated person’s power of attorney;
  • The spouse;
  • An adult child;
  • A parent;
  • A relative with whom the incapacitated person has resided for more  than 6 months prior to filing the petition;
  • A person named by one who is caring for the incapacitated person, or paying benefits to him/her;
  • A private fiduciary, professional conservator, or the Arizona Department of Veteran Affairs;
  • If no relative is available and willing to act as guardian, then the public fiduciary may be nominated.

What are the procedures for obtaining guardianship?

  1. The petitioner must obtain a physician’s statement supporting the finding of incapacity.
  2. Petitioner files the necessary paperwork at the Probate Court and obtains a hearing date, which is usually 30 to 60 days from the date of filing, or in an emergency situation, 3 to 5 days.
  3. The court appoints an investigator to the case, and an attorney to represent the proposed ward. Both of these appointments are required by law and add to the cost of the guardianship.
  4. The petitioner must arrange for personal legal service of the court papers upon the ward and upon anyone else required to be served by the law.
  5. The petitioner must attend a court hearing and explain why he or the nominee should be appointed guardian.
  6. The petitioner, if qualified by the court, is appointed as guardian and is issued Letters of Guardianship, which is then used by the Guardian to show his authority when he makes decisions on behalf of the Ward. 

What are the duties of the guardian?

A guardian has basically the same powers and duties respecting the ward as a parent has with regard to a minor child, with some limitations. A guardian’s duties include:

  • Making living arrangements for the ward;
  • Arranging meals for the ward;
  • Making medical decisions for the ward;
  • Providing appropriate social and intellectual stimulations;
  • Controlling the ward’s behavior;
  • Filing an annual report regarding the ward’s conduction and an annual report from the ward’s doctor;

A guardian does not handle the ward’s finances except he/she may oversee small amounts of money deliverable to the ward. A guardian is not personally or financially liable for the debts or actions of the ward.

Temporary Guardian

A temporary guardian for an incapacitated person may be appointed if an emergency exists and the welfare of the ward is found to require immediate action. The request for both temporary and permanent guardianship must be made in the petition if the petitioner wants a temporary emergency guardian appointed. A separate hearing is held on the petition for temporary guardianship. An order appointing a temporary guardian is effective until the date of the permanent hearing. A permanent guardianship is effective for the ward’s entire lifetime unless the guardianship is terminated by the court.

How much does a guardianship cost?

The costs for filing a guardianship vary from county to county. The legal fees vary based on the complexity of the matter, whether the matter is an emergency, whether a conservatorship is also requested, and whether the guardianship is contested by an interested party. For a non-contested guardianship the petitioner can typically expect to pay anywhere from a couple of thousand dollars to five thousand dollars.  An appointed guardian is entitled to reimbursement from the incapacitated person’s assets for payment of legal fees. The fees of the attorney appointed to represent the alleged incapacitated person are also chargeable against the incapacitated person’s assets.