In a guardianship, a legal guardian is appointed by the court to handle the affairs of a minor or incapacitated adult (known as the ward). A guardian’s responsibilities may be general or limited, and can vary from case to case, but generally speaking a guardian is charged with managing the ward’s health care, living situation, and financial matters.
When it comes to guardianship of an incapacitated adult, the guardianship is intended to last until the adult regains competency or passes away.
When a guardian loses the ability to care for their ward, the guardian has the right to resign from their obligations and relinquish guardianship (ARS 14-5307). After all, the guardian voluntarily took on the responsibility, so the agreement can be voluntarily ended.
That said, if the ward is still incapacitated then he or she will need a new guardian to continue caring for them. The resigning guardian doesn’t necessarily have an obligation to provide the court with a new guardian, but in practice the resigning guardian will present a qualified individual or professional to take their place.
How to Relinquish Guardianship of an Incapacitated Adult
If you’re a court-appointed guardian for an incapacitated adult and you need to relinquish guardianship, here’s how to go about the process:
- Speak with the interested parties – with any guardianship matter, it’s always best when all of the interested parties (the ward, the family, and any attorneys involved) are on the same page. Let the interested parties know about your intention to relinquish guardianship and explain why this choice is in the best interests of the ward.
- Find a new guardian – hopefully there is another family member who is willing to take on the responsibility of guardianship—maybe an adult child or one of the ward’s siblings. If there aren’t any family members who are willing and qualified, you may need to look into hiring a professional guardian. When hiring an attorney or an agency as guardian isn’t financially feasible, check if there is a public guardianship agency in your area that is willing to take on the case pro bono or for a nominal fee.
- Schedule a guardianship hearing with the court – when you’re ready to initiate the formal process of relinquishing guardianship, visit the county court and schedule a guardianship hearing.
- Serve a Notice of Hearing to the interested parties – once the hearing is scheduled, you’ll be required to serve a Notice of Hearing to all of the interested parties at least 15 days prior to the hearing. Don’t forget to file proof of service with the court, as the judge will likely cancel the hearing if the interested parties haven’t received sufficient notice.
- Prepare for the hearing –you’ll be asked to submit a final accounting of your activities as guardian to the court. This is a formality if the interested parties haven’t filed any complaints against you, but it’s still important to take it seriously. At the very least, it’ll help the new guardian hit the ground running.
- Attend the hearing – at the hearing, you’ll have the opportunity to explain to the judge why your resigning is in the best interests of the ward. The judge will assess the qualifications of the substitute guardian, and as long as everything is in order the judge will sign your release and appoint the new guardian.
Can the Guardianship Court Deny Your Request to RelinquishGuardianship?
You have the right to resign as guardian, but the judge may ask you to remain in your position for a reasonable amount of time until a new guardian is selected. The judge’s primary concern is the well-being of the ward, and the judge would be remiss in their duties if they left an incapacitated adult without a guardian.
For a smooth handoff with minimal delays, it’s essential to present a willing, qualified substitute for guardianship at the hearing.
When is it Necessary to Relinquish Guardianship?
Relinquishing guardianship is typically required when a guardian loses the capacity to fulfill their duty of care to the ward. That said, a guardian who can no longer physically care for their ward (perhaps due to aging or failing health) may still have the mental capacity to serve as guardian.
There are plenty of valid guardianship situations where the guardian is too old or ill to physically care for the ward, but they still have the mental capacity to make important healthcare decisions, handle finances, determine a care plan, and make living arrangements.
The guardian can hire a home-health agency to care for the ward at home, or they can place the ward in an assisted-living facility for full-time care, and neither of those actions would violate the guardian’s duty of care.
It’s also common for a spouse to relinquish guardianship if they divorce and/or remarry. In these situations, an adult child usually takes over the role as guardian.
How to End Guardianship
There are also plenty of instances where an incapacitated adult regains their mental capacity and no longer requires a guardian. The most common situations involve adults who awake from a coma, or who recover from a serious illness that rendered them temporarily incapacitated. Here’s how you can end the guardianship when that happens:
- File a Petition to Terminate Guardianship – when you submit the petition to the court, you’ll also need to file a final accounting report along with signed letters or affidavits by two physicians certifying that the adult has regained their mental capacities.
- Schedule a guardianship hearing – you’ll need to schedule the hearing out at least three weeks to provide you with enough time to serve notice to the interested parties.
- Serve Notice of Hearing to the interested parties – you can serve the Notice of Hearing by mail or in person. When all of the interested parties have been notified, you’ll need to file proof of service with the court. Don’t forget to file proof of service, as the court will probably cancel the hearing without it.
- Attend the hearing – at the hearing, the judge will review your petition along with the letters/affidavits from the physicians. If there are any interested parties who don’t agree with the decision to end the guardianship, they’ll have the opportunity to testify and present evidence. After everyone has had a chance to testify and present evidence, the judge will sign the request to end guardianship.