FindLaw KnowledgeBasePublished: 2012-05-01
Many people nowadays find themselves caring for a vulnerable adult loved one. It could be a family member — like an aging parent or a developmentally disabled sibling — or a friend. Regardless of the familial relationship, if you find yourself in the position of providing care for an ill, disabled or otherwise “incapacitated person,” (one under Arizona law Title 14, Section 5101, is defined as one who by reason of mental deficiency/disorder, physical illness or disability, chronic substance abuse/alcohol intoxication doesn’t have the requisite ability to make and communicate responsible decisions for him or herself), you might have questions about your legal rights, duties and responsibilities.
What Is a Guardianship?
The State of Arizona — in Title 14, Section 5101 of the Arizona Revised Statutes — defines an “incapacitated person” as one that cannot make decisions for him or herself due to:
- Physical illness
- Mental disorder/illness
- Chronic alcoholism or dependency upon illicit substances
An incapacitated person who has had a guardian appointed is known as a “ward” under § 5101(8) of the law.
The Guardianship Process
The position of guardian is a very important one. The guardian essentially steps in to play a “parental” role to his or her ward and has certain fiduciary duties — set forth in Title 14 § 5651 — to perform. A guardian is responsible for the ward’s well-being and welfare, and is legally authorized to make decisions concerning the protected person’s:
- Medical care
- Housing situation
- Education (if applicable)
Many people with comprehensive estate plans will name a guardian to make decisions for them in the event that they become incapacitated. This can be done through a power of attorney, a living will or a traditional will as in Title 14 § 5301. If such legal documentation exists, the court will usually appoint the named person as the guardian, provided the person is both willing to perform the tasks of a guardian and the court feels that the named guardian is capable of protecting the best interests of the ward.
If no plan exists to have a particular person or organization named guardian, then the court has the power — supplied by Title 14 § 5301.03 — can appoint one of its own choosing. The court has to weigh the need for a ward to have fiduciary representation with the ability of a particular guardian to meet those needs and must ensure that the guardian is someone trustworthy enough to take care of both him or herself and a ward simultaneously. The court could alternately choose to appoint a conservator under the power assigned by Title 14 Section 5301.04. These decisions are heavily weighed by Arizona’s family courts because guardians have such a huge responsibility for the life of the wards they protect. The freedom of a person in need of a guardian is seriously curtailed. A ward cannot:
- Get a credit card
- Keep a valid drivers’ license
- Apply for a personal or business loan
- Purchase real estate
Whether a guardian is appointed ahead of time through careful estate planning or by the court, the process can be confusing and wieldy for those untrained in the intricacies of Arizona law. The best way to ensure that your life is in the hands of someone you love and trust in the event that you become incapacitated is to name your own guardian. An experienced Arizona estate planning attorney can help you with the legal documentation necessary to do so and can, if necessary, represent your assigned guardian in court should the appointment be challenged.