How to become a guardian or conservator in Arizona?
Becoming a guardian and/or conservator in Arizona involves numerous steps.
To start the process, in order for a guardian and/or conservator to be appointed for an adult in Arizona, someone interested in the person’s welfare must, among other things, file a petition with the court in the county where the adult resides, is present or owns property. The petition must be verified under oath and include substantial information, including:
- information about the petitioner,
- information about the proposed protected person (also called ward),
- information about the proposed guardian and/or conservator,
- the reasons for the guardianship and/or conservatorship,
- the type of guardianship requested (i.e. limited, general and with or without authority to order in-patient mental health services) and/or the type of conservatorship requested (i.e. general, limited or single transaction),
- assets of the proposed protected person, and
- other information.
A guardian for an adult may not be appointed unless the petitioner files a report by a physician, psychologist or registered nurse acting within that person’s scope of practice. The medical report must include:
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.
A.R.S. § 14-5303. There is a form available for the health professional to complete. Additional information is required if the guardian is requesting authority to place the proposed protected person in an inpatient mental health (psychiatric) facility.
The Court will also appoint an attorney to represent the proposed ward, as well as a court investigator to meet with the ward and other interested persons.
Certain people have priority to serve as conservator for an incapacitated person and include, for example, a conservator, guardian of property or other similar fiduciary appointed or recognized by the appropriate court of any other jurisdiction in which the person to be protected resides; a person nominated by the protected person if the protected person is at least fourteen years of age and has, in the opinion of the court, sufficient mental capacity to make an intelligent choice, the person nominated to serve as conservator in the protected person’s most recent durable power of attorney, the spouse of the protected person and an adult child of the protected person. Similarly, priorities for appointment as guardian include, among others, the person’s spouse, individual nominated by the ward, adult child, parent or other relative of the incapacitated person, if the relative has lived with the person for more than six months before the petition was filed.
The Court will set a hearing on the petition. The petitioner must give notice of the hearing to the proposed ward and various other “interested persons.” At the hearing, the Court will allow witnesses to testify and will determine whether all of the prerequisites to the requested appointment have been met and it is proper and necessary for a guardian and/or conservator to be appointed. If the Court grants the petition and makes the appointment, the guardian/conservator then has numerous duties, including budgeting, accounting, reporting and others. Unless the Court waives the requirement, the guardian/conservator must complete certain training and file a certificate of completion before the appointment can be effective. The conservator may have to post a bond before the appointment becomes effective.
What are the Steps to Being Appointed Guardian and/or Conservator in Arizona?
In summary, the steps to be appointed guardian and/or conservator for an adult in Arizona are as follows:
- File a petition with the Arizona Superior Court in the appropriate County;
- File the Affidavit of Proposed Appointee completed and signed by the proposed guardian and/or conservator, and notarized;
- File the acceptance of appointment and acknowledgment of the Order to Guardian and/or Conservator, both signed by the proposed guardian;
- File other required paperwork, including the probate information cover sheet;
- Obtain and file the Health Professional’s/Medical Report (use the approved Court form) – required for a guardianship and may be required for a conservatorship;
- Complete and file the certifications that the proposed guardian and/or conservator has completed the training for unlicensed fiduciaries and for guardians, unless the person is exempt or the Court waives the requirement;
- Obtain a hearing date from the Court;
- Obtain the name of the court appointed attorney assigned to represent the proposed protected person, unless the person has a preexisting relationship with an attorney who will represent the person in the guardianship matter;
- Serve notice of the hearing and copies of all other paperwork on the proposed protected person and give notice to all other persons who are entitled to notice, including the court appointed counsel;
- File the affidavit of service and proof of notice with the Court;
- Lodge the Order Appointing Guardian and/or Conservator for the Court to sign and enter if the Petition is granted; and
- Attend the hearing.
Again, there is more involved. If there is an objection to the petition and the matter becomes contested, typically the Court will allow discovery (exchange of information and documents, the issuance of subpoenas and other activities) and then eventually set an evidentiary hearing (trial).
Planning for Guardianship or Conservatorship of your Minor Children in your Will
Legal guardianship, in the context of estate planning, involves designating a person in a will to have legal responsibility for the care and well-being of a child or children in the unfortunate event of the death of both parents. It generally entails the selection of a trusted individual who will assume the role of a guardian for the children.
By specifying a legal guardian in one’s will, an individual ensures that their children are cared for and protected according to their wishes. Failing to designate a legal guardian prior to passing away leaves the decision in the hands of the court, which may not align with the preferences or intentions of the deceased parent.
It is not only crucial to choose a person whom you believe will provide appropriate care for your children, but it is also vital to communicate your decision to the prospective guardian. The role of a legal guardian carries substantial responsibilities, so it is essential to verify that the designated person is willing and prepared to undertake this responsibility.
In essence, legal guardianship within estate planning refers to the process of nominating a responsible individual to assume parental obligations and make crucial decisions regarding the upbringing and welfare of the children left behind in the event of the parents’ demise. This designation serves to provide peace of mind and ensure that the children are cared for in accordance with the wishes of the deceased parent.
What Happens if a Guardian is not Named in my Will?
The process of determining who would assume responsibility for your minor children in the event of your passing can become more complicated. Without a clear indication of your wishes, the decision of who will care for your children may be left up to the court system and the designated list of individuals who may serve as guardian. This can lead to delays, disagreements among family members, and potential disputes over custody. It is essential to ensure that you have designated a legal guardian in your will to avoid any uncertainty and to ensure that your children will be taken care of by someone you trust and have discussed this responsibility with.
Call Berk Law Group
If you have any questions about an Arizona guardianship or conservatorship or need assistance in an elder law matter, contact us or call 480.607.7900. We have broad experience dealing with a wide variety of probate and elder law matters in Arizona. To learn more about Arizona adult guardianships and conservatorships, you can read our guardianships/conservatorships article.
Schedule a Consultation Get Our eNewsletter
