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Guardians of Minors

Guardians of MinorsThe Arizona courts appoint guardianship of a minor to someone during times of great change in the minors’ life. Either the minors’ parents have died or the minors’ parents are somehow otherwise unable to safely care for their child or children. Many times the events that open the door to guardianship can involve a parents’ incarceration, serious illness, or somehow being incapacitated to the point of unavailability. For many other minors, the death of both parents creates the need for the court to approve a guardian.

The attorneys of Berk Law Group, PC work with Arizona families who face difficult choices like these. Questions about who to nominate as a guardian of a minor are extremely common. Even in the estate planning side of appointing guardianship, families resist creating a will or trust at the point that it requires naming a guardian. Believing that the best interest of the child can and will be met through guardianship is an emotional and psychological process, just as much as it is a court related procedure. Your family’s best interests are always foremost with our attorneys and staff who each understand the unique value of each child and the challenging circumstances under which decisions must be made.

Title 14, Chapter 5, Article 2 of the Arizona Probate Code outlines the court’s procedures for the appointment of a guardian of a minor.

Testamentary Appointment of a Minor

This is the situation wherein a last will and testament names the appointment of a guardian. In the case where a minor’s parent(s) has been adjudged as being incapacitated, the court may appoint the guardian designated in the parent’s will.

Conditions for Appointment

The court scrutinizes carefully the fitness of a potential candidate for guardianship of a minor. All candidates are measured by determining whether the appointment is in the best interest of the child.

The first qualification is that any other parental rights have been “terminated or suspended by circumstances.” If the minor has parents with any claim of right, the guardianship will not proceed during the pendency of establishing the parental rights. The court must first terminate or suspend the parent’s rights prior to any filing or approval of a guardianship petition.

The court may consider nominations by the minor if the minor is fourteen years old or older. The court may reject any nomination, including one made by the minor, if it is against the best interest of the child. Where the nomination is someone unrelated to the child, the potential guardian must submit a full set of fingerprints and agree to pay for a local and federal criminal background check (A.R.S. § 14-5206).

Duties of Guardian of a Minor

The court oversees the guardians’ powers and duties related to the “support, care, and education” of the minor.

Basically, the guardian has the same duties and powers with respect to a minor as a parent.  Thus, the guardian’s duties include:

  • To maintain a relationship with the minor ward to understand and appreciate the minor’s needs, capacities, limitations, health, and opportunities.
  • Take all reasonable steps necessary to protect the physical and material property of the ward, including the personal belongings, keepsakes, and any financial accounts.
  • Apply the ward’s funds to the minor’s current needs for support, care and education.
  • Save any excess funds for future needs the minor may have.
  • Continue to make the court aware of the minor’s welfare by filing reports.

In addition to duties, the court also grants powers or rights that the guardian uses in the best interest of the minor.

For example, a guardian may:

  • Receive and use funds from any financial payouts by insurance, contract, trust, or other property owed to the minor as part of an estate, only for the express purpose of supporting the minor.
  • Establish the minor’s residency in or out of the state, if so ordered by a court in a juvenile detention or commitment matter.
  • Enforce contracts, compel performance, or institute other proceedings affecting the minor’s financial well-being or welfare.
  • Enable and facilitate the education of the minor, as well as encourage and facilitate the minor’s social or other educational activities. Allow for the consent to medical or other professional care, treatment or advice for the ward. According to the statute, “a guardian is not liable by reason of this consent for injury to the ward resulting from the negligence or acts of third persons unless a parent would have been liable in the circumstances.”
  • Grants consent to the minor’s marriage or adoption to a qualified person, where applicable.
  • If reasonable, allow the minor to accept “certain responsibilities for decisions that would affect the ward’s well-being” ARC 14-5209(C).

Other Rights Granted to a Guardian of a Minor

A guardian may also request and be granted a “reasonable compensation for services as guardian.” This may include, but is not limited to, the preparation of reports submitted to the court, in the furtherance of the child’s education, healthcare, or well-being. The guardian may also request “reimbursement for room, board and clothing personally provided to the (minor) but only as approved by order of the court.”

In the interest of developing self-reliance on the part of a ward or for other good cause, the court may alter the responsibilities and rights of the guardian. For example, the court may create a limited guardianship that would incorporate more of the minor’s choices and responsibilities.

Guardianship of a Minor: What Next?

Of course, each guardianship is different.  If you have questions about the rights, responsibilities, and process involved in applying for or being granted guardianship of a minor in Arizona, the lawyers and staff of Berk Law Group, PC. are at your disposal to assist with these matters. These are common concerns with serious implications. Our attorneys appreciate the stakes involved for families looking out for the best interest of a minor.

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