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"Many people are aware that they can provide for guardianship of their minor children, but fewer consider guardianship for adults."
Guardianship for adults can ensure they receive the care and support they need in the event of incapacity, mental disorder, or other mental or physical disability.
Guardianship can provide an individual with an advocate to represent their best interests when they or their family may no longer be able to.
Guardianship in Arizona involves a legal court appointment of an individual or other entity to provide make physical and mental health, and care decisions for an incapacitated adult. The person who is the subject of guardianship is known as the “ward.” The individual or agency charged with providing for the ward is known as the “guardian.”
Minor's under the age of 18 are usually considered to be legally unable to manage their own affairs, with individuals over the age of 18 presumably capable of managing their own affairs. In order for an adult to have a guardian appointed, the court must conclude the alleged incapacitated person does not have the mental or physical ability to make decisions regarding his/her physical care.
Any interested person may file a petition for appointment of a guardian. The adult who is the subject of guardianship will be represented by an attorney who will be appointed by the court unless the person has an existing professional relationship with a private attorney. The court will also appoint an investigator and a physician, psychologist or registered nurse ("health care provider"). Both the investigator and health care provider submit written reports indicating the state of the potential ward's incapacity. If the court determines the individual is incapable of making reasonable decisions or cannot communicate reasonable decisions for his/her physical care, the court will legally declare the ward as an “incapacitated person” and appoint a guardian.
When the ward is fully incapacitated, the court may appoint full guardianship. However, if the ward is able to handle some aspects of his/her own care, support and decision-making abilities, the court may determine a limited guardianship is appropriate, specifically indicating what kinds of decision-making powers the guardian does or does not have. A temporary guardianship may be used in emergency situations. A guardian ad litem can be used for a limited purpose, or limited to a specific time period.
Once the court appoints a guardian, the ward is generally limited in what kind of decisions the ward can make. A ward may be unable to get married, get an Arizona driver's license, enter into contracts, own a firearm, or vote. Before friends or family want to have an individual deemed an incapacitated person under the law, it is important to consider the limitations that person will have during the time they are under an adult guardianship.
Although a guardian may be responsible for the care and legal decision-making for the ward, it is important to provide the ward with an appropriate level of autonomy and independence. So long as the ward is able to manage certain aspects of daily living needs such as cooking and cleaning, the guardian may continue to nurture this independence without forcing them on a meal plan or housekeeping if it is not necessary.
In most cases, the appointed guardian will be someone who already has a personal connection with the ward, including friends or family; however, any competent person may be appointed. Parents or siblings may have grown up taking care of an incapacitated minor, and continue to care for the person after the individual reaches legal adulthood. Adult children may become guardians of a parent who is diagnosed with mental or physical illness or disability. When a friend or family member is unable to care for the adult ward, an unrelated guardian or public or private institution may be appointed.
A guardian is able to make many decisions for the care of the ward. This could include managing daily living needs, such as nutrition, hygiene, and daily activities. It can also involve major health and mental health care decisions such as medical treatment, medications, surgeries, and physical therapy. A guardian may also be responsible for handling limited matters for the ward. However, in most situations where management of financial affairs of a ward is a necessary, a conservator will be appointed. The appointment and role of a conservator is beyond the scope of this article and will be addressed at a later date in a separate article.
The appointed guardian may be responsible for making some very tough decisions for the adult ward, and coordinating multiple aspects of the ward's daily life. Depending on the level of the ward's physical and mental disability, the guardian may have to manage all aspects of the ward's life. This could include regular medical check-ups, dentist visits, and decisions over one type of medical treatment versus another.
It is important the guardian understand the guardian's role in caring for the ward. The level of care should be consistent with the level of disability. Where appropriate, the guardian should discuss all decisions with the ward, and listen to the ward's response. If the ward's preference would not result in any harm, then the guardian may want to give deference to the ward's decision, even if it is not the same decision the guardian would make.
After a guardian is appointed, the guardian is required to submit reports to the court and family members of the ward. The first report will run from the first date of appointment, through nine months after the permanent appointment. After that, a report is due annually on the ending date of the first report. Guardianship reports include information on the ward's address, visits between guardian and ward, the ward's doctors and recent medical visits, any changes in condition, what benefits were received, and contact information.
In some cases, a guardian can be financially compensated for their services provided as guardian. If a guardian intends to seek compensation, a Notice of Compensation must be filed with the court with copies of the Notice sent to family members. The Notice will include the intended hourly pay rate, and why the guardian believes the pay rate is appropriate. After approval, the court may annually review the guardian's compensation.
At West, Longenbaugh and Zickerman, our lawyers are here to help individuals and their families throughout Tucson achieve their family care and life-planning goals. We will work with you and provide you with everything you need to provide guardianship for an adult and ensure all of their needs are provided for. Our team of attorneys are committed to addressing the individual needs of each of our clients and can assist you with all aspects of guardianship planning.