When a person is unable to make decisions for himself, someone needs to be able to assume responsibility for that person’s affairs. A guardianship can become necessary in order to make non-medical residential placement decisions when there is a family conflict, or if the incapacitated person refuses treatment. A guardianship may be necessary to file tax returns.

If you have a valid power of attorney signed by the incapacitated person, in most cases you do not need to obtain guardianship over the person.

Any person interested in the incapacitated person’s welfare may petition for the appointment of a guardian.

A guardian is someone appointed by a court to make all personal decisions related to a person who is incapacitated as a result of a mental or physical disability.

All guardians must be appointed by the court.

Before the court can appoint a guardian, the court must first determine that the proposed ward is an “incapacitated” person. An incapacitated person is a person who is unable to make or communicate responsible personal decisions due to a mental or physical disability, chronic use of drugs, chronic intoxication or other cause. Once the court has determined that the person is incapacitated to make or communicate responsible personal decisions, the court may then appoint a guardian to make those decisions.

Any competent person may be appointed as guardian. The following persons have priority for appointment:

• A conservator of the person or a court appointed fiduciary;
• A party named by the incapacitated person, if the court determines the ward has sufficient capacity to make an intelligent choice;
• A person named in the incapacitated person’s power of attorney;
• The spouse;
• An adult child;
• A parent;
• A relative with whom the incapacitated person has resided for more than 6 months prior to filing the petition;
• A person named by one who is caring for the incapacitated person, or paying benefits to him;
• A private fiduciary, professional conservator or the Arizona Department of Veteran Affairs;
• If no relative is available and willing to act as guardian, then the public fiduciary may be nominated.

• Petitioner obtains a physician’s statement supporting the finding of incapacity.
• Petitioner files the necessary paperwork at the Probate Court and obtains a hearing date, usually 30 to 60 days from date of filing, or in an emergency situation, 3 to 5 days.
• The court appoints an investigator to the case and an attorney to represent the proposed ward.
• Petitioner arranges for personal service upon the ward and anyone else required to be served by statute.
• Petitioner attends a court hearing and explains why he or the nominee should be appointed guardian.
• Petitioner, if qualified by the court, is appointed guardian and is issued letters of guardianship, which is legal proof of the guardian’s authority.

A guardian has basically the same powers and duties respecting the ward as a parent has with regard to a minor child, with some limitations. A guardian’s duties include:

• Making living arrangements for ward;
• Arranging meals for ward;
• Making medical decisions for ward;
• Providing appropriate social and intellectual stimulation;
• Controlling the ward’s behavior;
• Filing an annual report regarding the ward’s condition and an annual report from the ward’s doctor.

A guardian does not handle the ward’s finances except he may oversee small amounts of money deliverable to the ward. A guardian is not personally or financially liable for the debts or actions of the ward.

A temporary guardian for an incapacitated person may be appointed if an emergency exists and the welfare of the ward is found to require immediate action. A separate petition for temporary guardianship must be filed along with the permanent petition and all other documents in order for a temporary order to be issued. A separate hearing is held on the petition for temporary guardianship. An order appointing a temporary guardian is effective until the date of the permanent hearing.

The court filing fee and court investigator fee for a guardianship is $516. The cost for publication of notice and service of process is approximately $200. The legal fees generally run from $3,000 to $6,000 depending on what is required and whether guardianship is the only issue. Legal fees will be higher if a temporary guardianship is necessary or the matter is contested.

An appointed guardian is entitled to reimbursement from the incapacitated person’s assets for payment of legal fees. The court appointed lawyer’s fees are also chargeable against the incapacitated person’s assets.