When a parent loses the capacity to handle important aspects of their healthcare, finances, or living situation, it’s often necessary for someone to step in and provide assistance. If the parent previously prepared a durable power of attorney, then the attorney-in-fact listed in the agreement already has everything they need to step in and begin making decisions on their parent’s behalf. If there isn’t a power of attorney, then the would-be caretaker will need to petition the court for guardianship.
What is Guardianship?
In a guardianship, the court appoints an individual or entity to provide care and make personal decisions for a minor or incapacitated adult. The subject of the guardianship is referred to as the ward, and the caretaker is referred to as the guardian.
When it comes to guardianships for elderly or incapacitated adults, the ward must be unable to communicate or make reasonable decisions for themselves to protect their own welfare. This may be the result of decreased mental cognition due to age, mental disease such as dementia or Alzheimer’s, a physical condition, disability, or even addiction (alcoholism, drug addiction, etc.). The ward may be fully incapacitated (e.g. in a coma) in need of complete assistance, or partially incapacitated and in need of only limited assistance.
Guardianships can be general or limited in scope. With a general guardianship, the guardian will often have full decision-making authority over all aspects of the ward’s life and healthcare. That includes their living situation, transportation, feeding, clothing, social life, and medical treatment. In a limited guardianship, the judge will determine which affairs the ward needs assistance with versus which affairs they can still handle independently. The judge will then limit the guardian’s authority to only the areas where the ward needs direct assistance.
Who Can Serve as a Guardian?
Any competent individual or entity (such as a private fiduciary or public agency) may serve as guardian to an incapacitated adult, though the responsibility often goes to an immediate family member. The court can also appoint the public fiduciary for the county to act as guardian to an incapacitated adult.
The law provides a list of priorities for appointment, though the judge over the guardianship case has the ability to appoint someone with a lower priority when the appointment is in the best interests of the ward. The state of Arizona offers the following list of priority:
- An individual who is already appointed guardian in another county or state
- An individual nominated by the ward
- An individual nominated by the ward’s power of attorney
- The ward’s spouse
- An adult child of the ward
- A parent of the ward
- An individual nominated in the ward’s last will and testament or living will
- Any relative with whom the ward has lived for at least six months
Before an individual or entity is appointed as a guardian, they will need to provide background information to the court, including any felony history and any prior times they have acted as a guardian for someone. If there are multiple petitions for guardianship, the judge will assess who has priority and will consider who is best qualified to serve as the ward’s guardian.
What Does a Guardian Do?
Guardianship offers a level of authority and responsibility that’s similar to that of a parent. Depending on the situation, the ward’s needs, and whether the guardianship is general or limited, a guardian’s duties may include:
- Accessing and releasing confidential information
- Determining appropriate social activities
- Determining where the ward will live
- Making decisions regarding the ward’s education
- Making end-of-life decisions
- Monitoring the ward’s living situation
- Providing consent for medical treatments
- Providing consent for non-medical services (e.g. counseling)
Above all, the guardian must always make decisions that are in the best interests of the ward. The goal is to ensure the ward’s safety and optimal living situation while maximizing the ward’s independence in the least restrictive manner possible.
Guardians are held responsible for their duty of care to the ward. They are required to submit a written report of their activities each year on the date of their appointment. The report should include details on the health and living conditions of the ward, a current physician’s report, and, if the guardian has access to the ward’s assets, an accounting of spending and finances.
How to Become a Court-Appointed Guardian
As guardianship takes away someone’s personal decision-making abilities, it’s important to ensure the prospective ward is not deprived of their right to due process. To that end, guardianship proceedings require an investigation, expert certification, and one or more court hearings. Guardianship cases take at least 1 – 2 months to complete, though they can take longer when they’re contested.
If you would like to become someone’s court-appointed guardian, here’s what you’ll need to do:
- Hire an attorney – guardianship proceedings can be long and complex, so you’ll need an attorney to represent you and guide you through the process.
- File a petition for guardianship – with the help of your attorney, you’ll file a petition for guardianship with the probate court in the county where the prospective ward lives.
- Schedule an initial hearing – you’ll be able to schedule an initial hearing for guardianship 3 – 5 days after the court accepts your petition. You can do this over the phone with the court’s calendar clerk, or in person at the Administrative building in Phoenix.
- Serve notice of the guardianship hearing – as the petitioner, it’s your responsibility to serve notice of the guardianship hearing to all interested parties, including the prospective ward, his or her attorney, and the ward’s family members. Generally speaking, you’ll need to serve notice at least 30 days prior to the hearing (in some cases the court accepts 15 days’ notice).
- File proof of notice – once you have served notice by certified mail or personal delivery, you’ll need to file proof of notice with the court. If you forget to file proof of notice, the court will likely have to reschedule the hearing.
- Ensure that the ward has an attorney – if the ward can afford an attorney, you may be able to use the ward’s assets to hire an attorney for them. If the ward can’t afford an attorney, the court will appoint one to represent them.
- Get a certificate of incapacity – in order to prove that the prospective ward is incapacitated, you’ll need to schedule an examination with a physician or psychologist. The doctor will issue a certificate of incapacitation that you can submit to the court as evidence.
- Wait for the investigation – the court will appoint an investigator to interview the ward and provide a recommendation as to whether or not a guardianship is necessary. The investigator will need to complete and submit their report before the hearing.
- Attend the hearing – attendance isn’t required at the initial hearing if nobody plans to contest the guardianship, but it’s still a good idea to attend with your attorney if you can. At the hearing, all interested parties—including the petitioner, the prospective ward, the prospective ward’s attorney, family, and friends—will have the opportunity to testify for or against the proposed guardianship. If all goes well, the judge will appoint you as guardian. If further due diligence is required, the judge will schedule a follow-up hearing
While the terms guardianship and conservatorship are often used synonymously, there’s actually an important distinction between the two in Arizona. Where guardianship appoints a caretaker to handle an incapacitated adult’s living situation and healthcare, conservatorship appoints a fiduciary to handle the incapacitated adult’s financial affairs. In a conservatorship, the incapacitated adult is referred to as the protected person.
In cases where the incapacitated adult is fully incapacitated, the court will usually appoint a guardian and a conservator (often the same person) to handle all aspects of their care. When the adult is partially incapacitated and can handle some of their own affairs, the court may appoint a guardian or conservator depending on the situation.
Call Guardianship and Conservatorship Attorney Colton Johnston at (480)467-4313 to discuss your case today.