Guardianship proceedings call for a determination from the court that the proposed incapacitated person, or ward, lacks the mental capacity to make decisions on his or her own behalf. Usually a written statement or oral testimony from a treating physician is required by the court to help it make that determination. The court must also appoint an appropriate person or entity to serve as the person's guardian. The person filing the petition is usually seeking guardianship powers herself, but the petitioner can nominate another to serve as guardian. If guardianship is necessary for the care of the ward and no appropriate person is available to serve as guardian, then the court will appoint the County Public Fiduciary or a nonprofit guardianship agency to serve.
Because these proceedings involve the removal or reduction of one's constitutionally guaranteed freedom to make decisions regarding his person, certain "due process" steps must be taken. The person seeking guardianship of another must petition the court in writing, and set a hearing date before a probate commissioner. The proposed ward must be personally served (by a process server) with written notice of the hearing date and a copy of the petition itself at least two weeks prior to the hearing. The proposed ward's spouse, parents, and adult children must also be given sufficient notice of the proceeding.
The proposed ward must be represented by an attorney, either one of his own choosing or one appointed by the court. In addition to appointment of an attorney, who is required to represent the ward at the hearing, the court also appoints a medical examiner and an investigator. The medical examiner is usually the physician who has provided the written report recommending guardianship, and his or her presence is usually not required at the hearing. The investigator generally has a background in health care or social work and is deemed a disinterested third party. He or she interviews all the parties and visits the proposed ward, and submits a written report to the parties and to the court several days prior to the hearing.
Prior to or during the court hearing the ward or any other person may object either to the allegation that the proposed ward is incapacitated, or to the appointment of the person seeking guardianship. Once the objection is filed, a trial is set before the presiding probate judge.
Once appointed, the guardian has full authority, with the backing of the court, to take care of the ward's health care and residential needs. The guardian does not need to provide care personally, but is responsible for arranging appropriate in-home care or placement in an assisted living or nursing facility. The guardian is expected to maintain an open line of communication with those providing care to the ward, and to act quickly if an emergency arises.
The guardian is not legally liable for injuries suffered or caused by the ward unless it is proved that the guardian acted very irresponsibly -- for instance, if the guardian is aware that the incapacitated person wanders frequently from the home, and does not even attempt to make adequate arrangements for 24-hour care for the ward, then the guardian may be found personally liable for any resulting injuries or damage. Such incidents are extremely rare, and those who find the responsibilities of guardianship too taxing have the option of going back to court and passing the job on to another individual or agency.
Please call us to see if Benavidez Law Group, P.C., can assist you with your Guardianship needs.
In Arizona the guardian is required to make an annual report to the court (with copies sent to family and other interested parties) on the status of the ward. The court takes these report requirements seriously, and failure to report may result in a fine or even arrest.
Assuming the responsibilities of guardianship is an extraordinary act of kindness toward a fellow human being who may not be capable of understanding this gift. Those of us who assist with guardianship, including the court staff, are always impressed with the self-sacrifice and hard work of family members, friends, and even strangers who are willing to step forward and take on the difficult, but usually satisfying, job of guardianship.
