martindale Avvo Rating  Berk Law Group, P.C. Super Lawyers | Kent S. Berk | Berk & Moskowitz, P.C.

Guardians of Incapacitated Persons

Guardianship for EldersWhile life expectancy improves, families are discovering a new care-giving model that involves around-the-clock care-giving and even guardianship proceedings. Perhaps a loved one requires greater care following a prolonged illness or the onset of a degenerative disease affecting mental capacity, such as Parkinson’s or Alzheimer’s. Some incapacitations can occur at any age due to a severe accident. In any of these circumstances, the care that a loved one needs may exceed what skilled nursing homes or medical personnel can offer. If a person’s condition continues to deteriorate, the situation calls for decision-making on behalf of the incapacitated person.

The courts view guardianship as the process of granting another person decision-making authority with the least possible amount of restriction. The allegedly incapacitated person is known in the court as the ward. The process of guardianship of an incapacitated person can be confusing and may initially seem daunting. Some loved ones report feeling tremendous guilt at even attempting to seek control over a portion of someone’s life who at one time was a vital and strong individual. Yet, if guardianship has become the only available option, then this is a process that can be accomplished with dignity for all involved.

Considering Guardianship for a Loved One

Many people starting the process naturally have questions: Is this really necessary? Can it be avoided? Who can petition? Can it be revoked, limited, or expanded as needed? What are my rights and responsibilities if I am nominated to fill the role of guardian? These are some examples of the most common questions. By asking questions and addressing these concerns with an experienced Arizona guardianship attorney, families and loved ones show care and love for the person whom guardianship is sought.  And, an experienced attorney can guide you through the process and may be able to avoid disruptive, stressful and time-consuming issues.

In the situation where a person can still provide legal consent, a guardianship application may be avoided altogether. If the potential ward, that is, the person needing care-giving, is able to provide consent, a valid power of attorney for healthcare and financial decisions may be executed. If it is possible, completing this simple step can save families from the many hours of preparation and time in court petitioning for and administering a formal guardianship.

The issue of mental capacity and the potential ward’s wishes factor heavily in guardianship proceedings. It is for this reason the court requires physicians to provide their determinations regarding the extent of physical or mental incapacitation, as well as any other relevant testimony or evidence by the person him or herself.

The Process of Guardianship

The next thing to consider in the process is that courts will attempt to grant guardianship over a ward only to the extent necessary to help the potential ward. Partial or limited guardianship may be sought where the alleged incapacitated person requires some assistance. For instance, the incapacitated person may simply be underage and therefore unable to enter into binding agreements. In such a case, the guardianship would likely end at the ward’s eighteenth birthday. Or, the incapacitation may be a mental limitation where control of all  decision-making would be granted to a guardian. Your situation may differ, but these are just two ways that a court may assign a limited guardianship. The point is that guardianships may be customized to be narrow or broad to fit the particular circumstances.

In any case where either general or limited guardianship is sought, the process of petitioning a court involves presenting evidence of several key elements. These elements can be found in ARS 14-5303. The petition must state:

  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, 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.
  9. If a custodial order was previously entered regarding an alleged incapacitated person in a child custody action or similar proceeding in this state or another jurisdiction and the petitioner or proposed guardian is a parent or nonparent custodian of the alleged incapacitated person, the court and case number for that action or proceeding is required.
  10. If the appointment of a guardian is necessary due solely to the physical incapacity of the alleged incapacitated person.

Each situation is unique. That is why consulting with a qualified Arizona guardianship attorney can assist you in mapping out and navigating the road ahead.

Rights and Responsibilities of a Guardian

A guardian has the right to make decisions on behalf of the ward. These decisions include the medical, residential, and mental care of the ward, depending on the limitations imposed by the court. The guardian may also place the ward in a level one mental health facility, but only if specifically approved by the Court. The guardian is empowered to make decisions impacting a minor’s educational, cultural, social, and medical needs. The guardian has the responsibility of regularly reporting to the court the status of the ward’s condition, including any changes in finances or medical issues.

Challenging Guardianship

Within these parameters, the court will take into account other considerations. For instance, it may consider how strongly the ward wishes or believes he or she is capable of maintaining self-reliance. If there is evidence challenging the incapacity, for instance, these same proceedings allow for the basis of the guardianship and the alleged incapacity to be heard in court. A person may challenge the physician’s reports by providing alternate diagnoses or explanations for temporary physical conditions. Many times a person is prescribed medication following a surgery, for example, which impacts mental functioning. However, once the side effects of the drugs have passed, the alleged incapacitation also disappears. In a situation like this, even limited guardianship may be inappropriate. Having an attorney advocating on behalf of self-reliance gives the person who is challenging incapacity peace of mind that the proceedings are not automatically removing the rights of independence.

Take control of the process

For the concerned loved one, guardianship can mean freeing up precious resources of time, energy, and finances toward the care of someone who needs it. For those who feel they have been asked to give up their rights to self-sufficiency, challenging guardianship can help them to retain their self-respect and independence. Guardianship is limited to the extent necessary to protect a potential ward from harm and add to the person’s quality of life. Of course, there is a time and place for a guardianship. For a family member who truly needs assistance, a guardianship is a useful tool to ensure that someone can administer his affairs if other arrangements have not been made. Consulting with a knowledgeable Arizona guardianship attorney can substantially prepare those involved.