How Do I Create a Guardianship for my Adult Child in Arizona?
Full Question:
Answer:
A guardianship is a legal relationship created when a person or institution named in a will or assigned by the court to take care of minor children or incompetent adults. To establish a guardianship, a petition is typically filed in state court where the ward lives. This petition usually names the potential guardian and provides information about the parties' relationship (if any) and usually any pertinent information about the heirs or estate of the ward. In the case of an adult ward, if mental incapacity is the reason for the petition, medical documentation should accompany the filing. Notice of the time and place of the hearing is given to the potential ward and other persons specified by statute. The documents are served on the interested parties at which point the proposed ward or his or her relatives can object to the guardianship request. A hearing is held. If the court finds sufficient evidence to order the guardianship, it may issue subsequent orders, which govern the relationship and the guardian's actions. The court may appoint a guardian if it finds the person is incapacitated and the appointment is necessary to provide continuing care and supervision of the person. Incapacity can result from any number of conditions, including, but not limited to mental illness, mental deficiency, mental disorder, physical illness or disability, chronic use of alcohol or other drugs. Essentially, the court must be convinced that the individual lacks sufficient understanding or capacity to make or communicate responsible decisions. A guardian must submit written reports to the court according to the court's orders and the law of the jurisdiction in which the guardianship takes place. If a guardianship is contested, the court may appoint a disinterested third party to investigate and make recommendations. Usually called a guardian ad litem, this person evaluates both the necessity for a guardianship, and the appropriateness of the proposed guardian. The ward may also hire separate legal counsel. If the proposed ward is indigent, the court sometimes appoints counsel.
There are different types of Guardians. A Personal Guardian tends to the personal care of the ward, while an Estate Guardian is the guardian of a persons estate (real estate, personal property, money, and the like). One person can be guardian of both, or separate guardians may be appointed. A Personal Guardian is given custody of the disabled person or minor, this person often being called the ward. Such a guardian has a duty to take care of the ward. He/she will decide where the ward will live. He/she cannot place the ward in a nursing home or other residential facility unless specifically given that authority by the Court. The guardian is responsible for the ward's support, care, comfort, health, maintenance and placement, if appropriate, in an educational program; all from the ward's income and assets. The guardian is to see that the ward gets the medical, dental, grooming, and other professional services that the ward needs. The law requires that the guardian assist the ward in the development of maximum self-reliance and independence.
The following are AZ statutes:
14-5302. Venue
The venue for guardianship proceedings for an incapacitated person is in
the county where the incapacitated person resides or is present. If the
incapacitated person is admitted to an institution pursuant to order of a
court of competent jurisdiction, venue is also in the county in which that
court sits.
14-5303. Procedure for court appointment of a guardian of an alleged
incapacitated person
A. The alleged incapacitated person or any person interested in that
person's affairs or welfare may petition for the appointment of a guardian
or for any other appropriate protective order.
B. The petition shall state, to the extent known:
1. The interest of the petitioner.
2. The name, age, residence and address of the alleged incapacitated
person.
3. The name, address and priority for appointment of the person whose
appointment is sought.
4. The name and address of the conservator, if any, of the alleged
incapacitated person.
5. The name and address of the nearest relative of the alleged
incapacitated person known to the petitioner.
6. A general statement of the property of the alleged incapacitated
person, with an estimate of its value and including any compensation,
insurance, pension or allowance to which the person is entitled.
7. The reason why appointment of a guardian or any other protective order
is necessary.
8. The type of guardianship requested. If a general guardianship is
requested, the petition must state that other alternatives have been
explored and why a limited guardianship is not appropriate. If a limited
guardianship is requested, the petition also must state what specific
powers are requested.
C. On the filing of a petition, the court shall set a hearing date on the
issues of incapacity. Unless the alleged incapacitated person is
represented by independent counsel, the court shall appoint an attorney to
represent that person in the proceeding. The alleged incapacitated person
shall be interviewed by an investigator appointed by the court and shall be
examined by a physician, psychologist or registered nurse appointed by the
court. The investigator and the person conducting the examination shall
submit their reports in writing to the court. In addition to information
required under subsection D of this section, the court may direct that
either report include other information the court deems appropriate. The
investigator also shall interview the person seeking appointment as
guardian, visit the present place of abode of the alleged incapacitated
person and the place where it is proposed that the person will be detained
or reside if the requested appointment is made and submit a report in
writing to the court. The alleged incapacitated person is entitled to be
present at the hearing and to see or hear all evidence bearing on that
person's condition. The alleged incapacitated person is entitled to be
represented by counsel, to present evidence, to cross-examine witnesses,
including the court-appointed examiner and investigator, and to trial by
jury. The court may determine the issue at a closed hearing if the alleged
incapacitated person or that person's counsel so requests.
D. A report filed pursuant to this section by a physician, psychologist
or registered nurse acting within that person's scope of practice shall
include the following information:
1. A specific description of the physical, psychiatric or psychological
diagnosis of the person.
2. A comprehensive assessment listing any functional impairments of the
alleged incapacitated person and an explanation of how and to what extent
these functional impairments may prevent that person from receiving or
evaluating information in making decisions or in communicating informed
decisions regarding that person.
3. An analysis of the tasks of daily living the alleged incapacitated
person is capable of performing without direction or with minimal
direction.
4. A list of all medications the alleged incapacitated person is
receiving, the dosage of the medications and a description of the effects
each medication has on the person's behavior to the best of the declarant's
knowledge.
5. A prognosis for improvement in the alleged incapacitated person's
condition and a recommendation for the most appropriate rehabilitation plan
or care plan.
6. Other information the physician, psychologist or registered nurse
deems appropriate.
14-5304. Findings; order of appointment; limitations; filing
A. In exercising its appointment authority pursuant to this chapter, the
court shall encourage the development of maximum self-reliance and
independence of the incapacitated person.
B. The court may appoint a general or limited guardian as requested if it
is satisfied by clear and convincing evidence that:
1. The person for whom a guardian is sought is incapacitated.
2. The appointment is necessary to provide for the demonstrated needs of
the incapacitated person.
3. The person's needs cannot be met by less restrictive means, including
the use of appropriate technological assistance.
C. In conformity with the evidence regarding the extent of the ward's
incapacity, the court may appoint a limited guardian and specify time
limits on the guardianship and limitations on the guardian's powers.
D. The guardian shall file an acceptance of appointment with the
appointing court.
14-5309. Notices in guardianship proceedings
A. In a proceeding for the appointment or removal of a guardian of a
ward or an alleged incapacitated person other than the appointment of a
temporary guardian or temporary suspension of a guardian, notice of a
hearing shall be given to each of the following:
1. The ward or the alleged incapacitated person and that person's spouse,
parents and adult children.
2. Any person who is serving as guardian or conservator or who has the
care and custody of the ward or the alleged incapacitated person.
3. In case no other person is notified under paragraph 1 of this
subsection, at least one of that person's closest adult relatives, if any
can be found.
4. Any person who has filed a demand for notice.
B. At least fourteen days before the hearing notice shall be served
personally on the ward or the alleged incapacitated person, and that
person's spouse and parents if they can be found within the state. Notice
to the spouse and parents, if they cannot be found within the state, and to
all other persons except the ward or the alleged incapacitated person shall
be given as provided in section 14-1401. Waiver of notice by the ward or
the alleged incapacitated person is not effective unless that person
attends the hearing.
14-5312. General powers and duties of guardian
A. A guardian of an incapacitated person has the same powers, rights and
duties respecting the guardian's ward that a parent has respecting the
parent's unemancipated minor child, except that a guardian is not liable to
third persons for acts of the ward solely by reason of the guardianship. In
particular, and without qualifying the foregoing, a guardian has the
following powers and duties, except as modified by order of the court:
1. To the extent that it is consistent with the terms of any order by a
court of competent jurisdiction relating to detention or commitment of the
ward, the guardian is entitled to custody of the person of the ward and may
establish the ward's place of abode within or without this state.
2. If entitled to custody of the ward the guardian shall make provision
for the care, comfort and maintenance of the ward and, whenever
appropriate, arrange for the ward's training and education. Without regard
to custodial rights of the ward's person, the guardian shall take
reasonable care of the ward's clothing, furniture, vehicles and other
personal effects and commence protective proceedings if other property of
the ward is in need of protection.
3. A guardian may give any consents or approvals that may be necessary to
enable the ward to receive medical or other professional care, counsel,
treatment or service.
4. If no conservator for the estate of the ward has been appointed, the
guardian may:
(a) Institute proceedings to compel any person under a duty to support
the ward or to pay sums for the welfare of the ward to perform such
person's duty.
(b) Receive money and tangible property deliverable to the ward and apply
the money and property for support, care and education of the ward, but the
guardian may not use funds from his ward's estate for room and board the
guardian or the guardian's spouse, parent or child has furnished the ward
unless a charge for the service is approved by order of the court made upon
notice to at least one of the next of kin of the ward, if notice is
possible. He must exercise care to conserve any excess for the ward's
needs.
5. A guardian is required to report the condition of the ward and of the
estate that has been subject to the guardian's possession or control, as
required by the court or court rule.
6. If a conservator has been appointed, all of the ward's estate received
by the guardian in excess of those funds expended to meet current expenses
for support, care and education of the ward shall be paid to the
conservator for management as provided in this chapter and the guardian
must account to the conservator for funds expended.
7. If appropriate, a guardian shall encourage the ward to develop maximum
self-reliance and independence and shall actively work toward limiting or
terminating the guardianship and seeking alternatives to guardianship.
8. A guardian shall find the most appropriate and least restrictive
setting for the ward consistent with the ward's needs, capabilities and
financial ability.
9. A guardian shall make reasonable efforts to secure appropriate medical
and psychological care and social services for the ward.
10. A guardian shall make reasonable efforts to secure appropriate
training, education and social and vocational opportunities for his ward in
order to maximize the ward's potential for independence.
11. In making decisions concerning his ward, a guardian shall take into
consideration the ward's values and wishes.
12. The guardian is authorized to act pursuant to title 36, chapter 32.
13. The guardian of an incapacitated adult who has a developmental
disability as defined in section 36-551 shall seek services that are in the
best interest of the ward, taking into consideration:
(a) The ward's age.
(b) The degree or type of developmental disability.
(c) The presence of other handicapping conditions.
(d) The guardian's ability to provide the maximum opportunity to develop
the ward's maximum potential, to provide a minimally structured residential
program and environment for the ward and to provide a safe, secure, and
dependable residential and program environment.
(e) The particular desires of the individual.
B. Any guardian of a ward for whom a conservator also has been
appointed shall control the custody and care of the ward and is entitled
to receive reasonable sums for the guardian's services and for room and
board furnished to the ward as agreed upon between the guardian and the
conservator if the amounts agreed upon are reasonable under the
circumstances. The guardian may request the conservator to expend the
ward's estate by payment to third persons or institutions for the ward's
care and maintenance.
14-5315. Guardian reports; contents
A. A guardian shall submit a written report to the court on each
anniversary date of qualification as guardian, on resignation or removal as
guardian and on termination of the ward's disability.
B. The guardian shall mail a copy of the report to:
1. The ward.
2. The ward's conservator.
3. The ward's spouse or the ward's parents if the ward is not married.
4. A court appointed attorney for the ward.
5. Any other interested person who has filed a demand for notice with the
court.
C. The report shall include the following:
1. The type, name and address of the home or facility where the ward
lives and the name of the person in charge of the home.
2. The number of times the guardian has seen the ward in the last twelve
months.
3. The date the guardian last saw the ward.
4. The name and address of the ward's physician or registered nurse
practitioner.
5. The date the ward was last seen by a physician or a registered nurse
practitioner.
6. A copy of the ward's physician's or registered nurse practitioner's
report to the guardian or, if none exists, a summary of the physician's or
the registered nurse practitioner's observations on the ward's physical and
mental condition.
7. Major changes in the ward's physical or mental condition observed by
the guardian in the last year.
8. The guardian's opinion as to whether the guardianship should be
continued.
9. A summary of the services provided to the ward by a governmental
agency and the name of the individual responsible for the ward's affairs
with that agency.
