A guardianship is a legal proceeding in which a person is appointed by a court to make all personal and health care decisions for someone who cannot make those decisions for themselves. The person who needs a guardian is called “the ward.”
- You might seek a guardianship for:
- An elderly parent
- Someone with dementia or Alzheimer’s
- Someone with a mental illness or mental disability
- Someone who suffers a stroke or a traumatic injury impacting their ability to act on their own behalf
- Minor children who will need to be raised and cared for if a parent is gone or incapacitated.
A guardianship is not needed in all situations
For example, if you and your loved one have a durable power of attorney previously appointed to make health care decisions, then a guardian may not be needed. A guardianship is common in situations in which prior personal and health care plans have not been made or in which there are minor children who will need to be cared for and raised by someone after a parent has died or become incapacitated.
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.
Power of attorney vs Guardianship
In many cases if you have already established a health care power of attorney you don’t need to apply for a guardianship.
If minor children are involved and a guardian has not been previously appointed, one will be needed.
Any person interested in the incapacitated person’s welfare may petition for the appointment of a guardian.
What does a guardian do? A guardian helps ensure that the ward’s personal and health care interests are taken care of. A guardian would be responsible for:
- Making health care decisions
- Making living arrangements
- Making decisions regarding any minors, if applicable
- Filing an annual report about the ward’s behavior
- Filing an annual report from the ward’s doctor
- and more, as related to the ward’s personal and medical decisions
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.
There are many steps in petitioning the court to get an appointment for a guardianship in Arizona and the team at Chester B. McLaughlin is here to guide you along the way. Here is the basic process for getting a guardian:
- Petition filed: All paperwork requesting a guardianship is submitted to County Probate Court.
- Hearing date set: Court determines a date for the hearing
- Court appoints officials: Court appoints an investigator to the case and an attorney to represent the ward.
- Legal papers are served: Petitioner arranges for legal papers to be served to the ward and anyone else who may be needed to support the case.
- Hearing: The petitioner must attend the court hearing and explain why the proposed guardian (themselves or someone else) should be appointed.
- Guardian appointed: if the guardian is appointed by the Court, a Letter of Guardianship is given to the guardian. The guardian will use this as proof of their authority whenever they need to make decisions on behalf of the ward.
A guardianship is in place for the duration of the ward’s life unless terminated by the court. (The exception is a temporary guardianship).
- The petitioner must obtain a physician’s statement supporting the finding of incapacity.
- 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.
- 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.
- 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.
- The petitioner must attend a court hearing and explain why he or the nominee should be appointed guardian.
- 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.
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 condition 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.
In emergency situations, the probate court can appoint a temporary guardian.
Examples of an emergency guardianship include:
- A loved one suffers sudden injury or a medical problem that makes them unable to make health care decisions or handle personal issues.
- Minor children need immediate placement and care in the event a parent is incapacitated and a guardian has not been previously appointed.
The petitioner must indicate that an emergency temporary guardian is being requested when they file papers with the court.
Costs for getting a guardian vary from county to county as well as the following factors:
- Complexity of the case
- Emergency vs. standard guardianship
- Request is contested
- Fees for the ward’s attorney
The legal fees can be reimbursed to the appointed guardian from the ward’s assets afterward.
Guardianship Versus Conservatorship
In Arizona, the court makes a distinction between a guardian and a conservator. In other states you might hear them called the same.
- A guardian is responsible for the personal and health care decisions of the ward.
- A conservator is responsible for the financial and property decisions of the ward.