By Abigail Neal, Arizona probate lawyer
Appointing Guardians for Adults
There may be a time during an adult’s life where they are no longer able to care for themselves. Typically, this occurs when an adult becomes incapacitated and is no longer able to make their own decisions responsibly. When this happens, the person’s family must file a petition with the court requesting that the court appoint someone to serve as the adult’s legal guardian. The guardian for the adult is then responsible for making all of the person’s important decisions, including living and care decisions.
When is a Guardian Needed?
A guardian may be needed in a number of situations. A minor may reach the age of 18 but despite being 18 is unable to properly care for himself or herself (for example, a special needs child). An adult may suffer from an injury, illness or disability which could cause them to be unable to make proper decisions regarding their care, living and medical requirements. Or, an adult could become impaired as a result of mental illness or disability.
What are the Duties of a Guardian?
A guardian is responsible for making decisions regarding the incapacitated person’s care, living arrangements and medical needs. A guardian must file annual reports with the court that detail the incapacitated person’s mental and physical condition, living arrangements and location.
If the incapacitated person has assets under $10,000, the guardian can manage those assets on behalf of the incapacitated person. If the person has assets over $10,000, a conservator must be appointed to manage the incapacitated person’s assets. The conservator may be the same person as the guardian, but could be a different person or entity entirely.
Who Can Serve as Guardian?
Typically an incapacitated person’s family member is appointed guardian, however the court can appoint anyone who is willing and able to perform the duties of a guardian. The person petitioning to be appointed guardian must convince the court that they are in fact able and qualified to serve as guardian.
If a person wishes to become a guardian, they may file a petition nominating himself or herself as the guardian. A person may also file a petition requesting that a private or public fiduciary be appointed a guardian, provided however that the fiduciary accepts the appointment. If more than one individual request appointment, the priority is given to the incapacitated adult’s immediate family member and/or the person listed in the incapacitated adult’s Health Care Power of Attorney or Last Will and Testament. However, persons seeking to be appointed guardian must not have certain types of criminal felonies or a negative history with CPS, nor may they be registered on the Elder Abuse Registry.
A guardian serves until the guardian is no longer able to serve, a successor guardian is appointed or until the guardianship is terminated.
What is the Effect of Appointing a Guardian?
Once a guardian is appointed, the incapacitated person loses certain rights and liberties, and is no longer able to make their own decisions.
What is the Procedure for Appointing a Guardian?
1. A petition to appoint a guardian is filed with the court. The person filing the petition must provide written notice to everyone who is entitled to know about the pending guardianship.
2. The court appoints an attorney to represent the incapacitated person during the proceeding.
3. The court appoints a physician to examine the incapacitated person and provide a written report about the person’s condition and/or mental state.
4. The court appoints an investigator who creates a report about whether or not a guardianship is appropriate.
Do you have a loved one in need of a guardian? Call Arizona probate attorney Abigail Neal at (480) 699-7992.
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