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Guardianship

Many reasons exist for obtaining or granting a guardianship.

Obviously, there are two main categories of guardianship, adult and minor. There are various sub-categories within the overall guardianship issue that are addressed here. You may have heard of a “Permanent Guardianship.” Under the Arizona Revised Statutes, Title 8, Section 5, §8-871, the Juvenile Division of the Court can order a permanent guardianship (See here). No other division can order such guardianships, so they are not addressed here. All of the guardianships discussed here are described in the Arizona Revised Statutes (ARS), Title 14. Title 14 guardianships are not permanent and require at least yearly reports to the court.

With regard to adults, guardianships can be obtained due to mental or physical impairment. Usually, the issue of finances will also be implicated and that would require implementation of a Conservatorship. A Conservator is a person that acts in the place of the Ward (the protected person). That person would have the right to collect or disburse funds on behalf of the protected person. There is a bond requirement to insure that the Conservator does not improperly use any of the Ward’s property. You should expect that most adult guardianships will require a Conservatorship. This can be an expensive undertaking because the proposed ward will be appointed counsel and an investigator will be appointed to verify what you allege in your petition. In addition, you will be required to serve a form on the proposed ward’s treating physician to verify the mental/physical health of the proposed ward. While the process can be a little complicated, usually circumstances will give you little other choice. The welfare of your loved one may demand this action.

Another issue regarding adult guardianships is the authority to consent to in-patient mental health care. If that power is necessary, you will need to specifically file for it. You will likely already know if this is something you believe is necessary, so don’t worry! If you need the authority, it merely requires a different filing and we are able to do it for you. Such authority may be necessary if the person suffers from a psychological or addiction issue because they aren’t likely to consent if they haven’t already done so. Consider if you will need this authority.

In regards to guardianships over minor children, they are also addressed under A.R.S. Title 14. One of the things to know about a Title 14 guardianship over a minor child is that they are revocable by the parent. Many parents will come upon hard times for whatever reason. During those hard times, family members might offer to take in the children. Frequently, we see grandparents taking in their grandchildren. However, under the law, the Grandparents have no right to consent to medical or dental treatment on behalf of the grandchildren nor do they have the ability to enroll the child in school independently of the parents. A guardianship gives the grandparents this authority and is commonly used for that purpose. Incarceration of one of the parents can also give rise to the need for a guardianship. It is worth noting that, a parent granting a guardianship, does not necessarily reflect poorly upon them. In fact, a parent granting a guardianship in circumstances where one is necessary shows that parent has properly considered the child’s best interest and has taken the appropriate steps. If the child has property or money, a conservatorship will also be necessary. Again, this is merely a different filing and shouldn’t deter you.

Guardianships are good tools to provide a person the necessary authority in times of need. Guardianships as discussed here are not permanent and should be viewed as temporary tools to safeguard the interests of the ward. Although guardianships can continue for years, if the proposed ward is a minor child, there might be other, more permanent, avenues to pursue. Be sure to review permanent options with your attorney if you believe they would be necessary.