Guardianship

The term guardian refers to guardian of the person.  The term conservator refers to one who is appointed to protect the property of a disabled person.  The same person may be appointed both guardian and conservator in a single proceeding, but the provisions for appointment and the powers conferred by appointment are different.

A Guardian’s Main Responsibility

A guardian’s main responsibility is to make those decisions necessary to ensure the care of the ward, who is the person for whom the guardian is appointed.  Although the guardian has, in general, the same powers and authority that a parent has over a child, the guardian has very limited powers over property of the ward, and a conservator should be appointed if the ward has property needing management or protection.

The Appointment of a Guardian

A guardian may be appointed by will or in court proceedings for either a minor or an incapacitated person.  Pursuant to Arizona statute, an incapacitated person is defined as any person who is impaired by reason of mental illness, mental deficiency, mental disorder, physical illness or disability, chronic use of drugs, chronic intoxication or other cause, except minority, to the extent that he lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his or her person.

The Appointment of a Guardian of a Minor by Will

Pursuant to Arizona statute, the parent of a minor child can, in their will, appoint a guardian for that minor child.  The appointment becomes effective when the will is probated and the nominated guardian files acceptance of the appointment with the court.  If the minor child is fourteen or older, he or she may file an objection to the appointment, and any person interested in the welfare of the child, including the child if fourteen years or older, may petition for removal of a guardian on the grounds that removal would be in the best interests of the child.

The Appointment of a Guardian of an Incapacitated Person by Will

Parents of a disabled child who are concerned about continuing care for their child after they have died can utilize the testamentary appointment process.  If the child is a minor, the incapacity should be included in the will so that the appointment of the guardian will not terminate once the child reaches the age of eighteen.  A spouse may also appoint a guardian for the other spouse who may be incapacitated.

The person who has been appointed guardian must give seven days notice to the person who is incapacitated as well as to the person caring for him or her, or his or her nearest adult relative.  The nominated guardian may then file acceptance of the appointment in the court where the will has been probated.  If the incapacitated person files an objection, the appointment is terminated.  The testamentary appointment also terminates if appointment is under an informally probated will, which is later denied probate in a formal proceeding, and court appointment would then become necessary.

The Appointment of a Guardian of a Minor by Court Order

If both parents of an unmarried minor are deceased or their rights to custody have been terminated or suspended by circumstances or court order, the court may appoint a guardian.  Pursuant to Arizona statute, appointment by the court is by formal proceeding on notice to the minor if he or she is fourteen years or older, to the person who has had the principal care and custody during the sixty days preceding the date of the petition, and to any living parent.  In addition, if a testamentary guardian has been appointed, but has not accepted the appointment, he or she should be given notice.  If a guardian has been appointed by the will of a parent, the court should not appoint a different person as guardian unless the minor, who is fourteen or older, has filed an objection or unless the court finds that the testamentary guardian has failed to file an acceptance of the guardianship within thirty days of notice of the proceeding.

The Appointment of a Guardian of an Incapacitated Person by Court Order     

The court appointment of a guardian for an alleged incapacitated person is more involved than appointment in the case of a minor.  A formal hearing is commenced by petition, and a hearing is held on the issue of incapacity.  Notice must be given to the alleged incapacitated person, their spouse, parents, and adult children.  In addition, notice must be given to any person serving as conservator or who has the care and custody.

The court is required to appoint an attorney if the alleged incapacitated person does not have one, as well as an investigator who will interview the alleged incapacitated person and the person seeking appointment as guardian.  The investigator will also visit the alleged incapacitated person’s current home as well as where he or she will reside.  In addition to the investigator’s written report to the court, the court will appoint a physician and psychologist or registered nurse to examine the alleged incapacitated person and who will also write a written report to the court.  The alleged incapacitated person’s right to due process is fully preserved byArizonastatute.  There is statutory priority for appointment, but the court may pass over a person who has priority.

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