In a guardianship agreement, the court appoints a qualified adult to manage the affairs of a minor or incapacitated adult (known as the ward). When the ward is a minor, the guardian usually has general authority over the minor’s finances, health care, living situation, and overall wellbeing.
When the ward is an incapacitated adult, the guardianship agreement may be general or limited depending on the extent of the adult’s mental incapacity. In either case, the guardianship agreement issues the guardian a legally binding duty of care for the ward.
When can a Guardianship Agreement be Reversed?
When the ward is an incapacitated adult, the guardianship agreement is intended to last until the ward regains their mental capacity or passes away. As such, there are four conditions that may justify reversing a guardianship agreement:
- The ward passes away – a guardian’s authority over the ward’s affairs ends when the ward passes away. At that point, control over the estate would pass to the estate’s executor or personal representative (though in most cases the guardian and the executor nominated in the decedent’s will are the same person). The court doesn’t need to hold a hearing to reverse the guardianship agreement since it would automatically end on its own.
- The ward regains mental competency – this may occur if the ward awakens from a coma or recovers from the illness that caused their incapacitation. In such cases, the ward, the guardian, or any interested party can petition to end the guardianship agreement. The court will hold a hearing where interested parties can testify and present evidence, and the judge will need to see letters or affidavits from at least two physicians attesting to the ward’s regained mental competency.
- The guardian is unable or unwilling to fulfill their duty of care – once a guardian has been appointed, it’s difficult to have the guardian removed. The court will need to see evidence that the guardian is remiss in their responsibilities, and the judge will only release the guardian if doing so is in the best interests of the ward. If the ward is still incapacitated, then the court will need to appoint a substitute guardian.
- The court determines that the initial agreement is wrong – this is rare, but it’s certainly possible. The court will need to see sufficient evidence that the initial guardianship agreement was obtained by misrepresentation, fraud, mistake, misconduct of a party, or excusable neglect.
Objecting to a Guardianship Before the Appointment
The best time to reverse a guardianship agreement is before the court appoints the guardian. As long as you’re an interested party to the guardianship proceedings (usually a family member or dependent), you should receive notice of the initial guardianship hearing via a Notice of Hearing and a Citation to Appear and Show Cause. Once you receive legal notice, there are two ways you can object to the guardianship:
- In writing – the best way to voice an objection is by submitting a written statement to the court. You can file a written objection with the court before the hearing (note that there will probably be a filing fee).
- In person – you also have the right to attend the hearing and voice your concerns to the judge in person. At the hearing, all interested parties will be given the opportunity to testify and submit evidence both for and in objection to the proposed guardianship.
If you believe guardianship is necessary but object to the proposed guardian, you can file your own petition for guardianship with the court. Just as the petitioner served notice to you, you’ll also need to serve a Notice of Hearing and Citation to Appear and Show Cause to the other interested parties.
At the guardianship hearing, the judge will assess the competing petitions for guardianship and will choose the most qualified candidate. Depending on the complexity of the case and the number of petitioners, the judge may need to schedule a trial before issuing a decision.
Objecting to a Guardianship After the Appointment
It’s much more difficult to reverse a guardianship agreement after the guardian is appointed, but you still have options. At this point, there are three ways you can object to the guardianship:
- Submit a Motion to Set Aside the Order – interested parties can file a motion to reverse the guardianship and start over within six months of the guardianship’s commencement. However, you can’t just ask the court to “redo” the agreement because you don’t like it. In order to file a successful motion, you’ll need to prove misconduct, neglect, mistake, misrepresentation, or fraud.
- Request the guardian’s removal – if the guardian has failed in their duty of care to the ward, anyone—not just interested parties—may submit a complaint against the guardian. That said, the court will substitute a guardian and appoint a successor when doing so is in the best interest of the ward, even if there isn’t evidence of neglect (ARS 14-5307). That means you just need to prove that appointing a new guardian is in the best interest of the ward.
- Submit a petition to terminate the guardianship – this typically only happens when the ward regains their mental capacity and will require letters or affidavits from two physicians certifying the ward’s mental capacity.
Ending a Guardianship
If you believe the guardianship agreement is no longer necessary, here’s how to go about reversing the agreement and ending guardianship:
- File a Petition for Termination of Guardianship – submit the petition to the court along with affidavits from two physicians certifying the ward’s mental capacity. If you’re the guardian, you’ll also need to submit a final accounting of your activities.
- Serve a Notice of Hearing to interested parties – once the court schedules a hearing, serve a Notice of Hearing to all of the guardianship’s interested parties at least 15 days before the hearing. When you’ve mailed or hand-delivered the notices, file proof of service with the court.
- Present your evidence at hearing – if all of the interested parties and the ward are in agreement, the hearing will be quick and civil. If there are any dissenting parties, however, the judge will hear testimony, assess the evidence, and potentially schedule additional hearings depending on the complexity of the issue.
Call Guardianship and Conservatorship Attorney Colton Johnston at (480)467-4313 to discuss your case today.
