Thursday, 21 June 2018 12:22

Adult Guardianships in Arizona

Sometimes people have to go through the sad task of obtaining an adult guardianship.  Sometimes they need a guardianship over an elderly parent or other relative because the parent or relative has a diminished capacity in his or her old age.  Sometimes, an adult child, parent, or other relative has had an accident with a brain injury, for example, that has left him or her unable to address daily needs.  Sometimes an incapcitated child becomes an adult.  In all three situations, someone, usually a parent or child of the proposed ward, must seek a court order in the Probate Court of the Arizona Superior Court in order to have a guardianship over the incapacitated person.
 
The guardianship will allow the guardian to make decisions for the ward, seek medical attention for the ward, provide for the ward’s day-to-day needs, determine where the ward lives, and make living arrangements for the ward.  A guardianship does not authorize the guardian to handle the ward’s property and finances.  A conservator must handle the ward’s property and finances.  Therefore, when a ward has property and finances to handle, the petitioner will seek appointment of both a guardian and a conservator, which are usually the same person.
 
To start the process, the petitioner must file a petition to establish a guardianship over the proposed ward, along with several other papers.  Once the court sets a hearing date, the petitioner must contact the Office of the Public Defender so that they may assign a lawyer to represent the proposed ward; complete the order appointing attorney, health professional, and court investigator; give the order to the probate registrar; and serve notice on all persons entitled to notice, such as the other parent of the proposed ward or other children of the proposed ward (these people may sign a waiver of notice).  The petitioner must also give a set of the court’s guidelines to the physician appointed to complete the evaluation.
 
The petitioner then must provide the report to the court five business days before the hearing.  The petitioner must also file the notice of hearing, waiver of notice (if any), affidavit of service, and the order appointing five business days prior to the hearing. 
 
The petitioner must go to the hearing with all of the required forms and orders, including the order appointing a guardian and letters of guardianship, for the court to sign.  If no one objects to the guardianship or to the proposed guardian, the court will have an uncontested hearing and, assuming that the petitioner has met all the statutory requirements and the proposed ward needs a guardian, the hearing will be easy.  If someone objects, the court may have an uncontested hearing and decide the issue or set another hearing to gather more information.
 
If you need help with an adult guardianship, Thomas A. Morton can help you.
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The Superior Court's website in Maricopa County has many useful forms for people representing themselves in court.  The family law category of forms is the most impressive, with forms for divorce, annulment, legal separation, child support, spousal maintenance, alimony, temporary orders, custody/legal decision making, parenting time, and many other topics.  I do not particularly like the forms because they are too long, sometimes don't make much sense, and lack flexibility, but they are far better than the alternative of not submitting anything at all, or someone with no legal background or training attempting to write court filings.  If you decide to use the court's forms, my advice is to do so with the advice of an experienced lawyer.  However, if you are using the forms, it is probably because you cannot afford a lawyer.  In that case, be very careful about what you sign and submit to the court.  Do not be afraid to cross out requests in the form that you do not want to make.

 

Aside from forms for family law, the court's website has many useful forms for probate, juvenile law, civl law, and powers of attorney.  The court has sufficient probate forms to complete an entire informal probate from beginning to end, juvenile court forms sufficient to complete a voluntary guardianship, and four powers of attorney sets of forms (general power of attorney, special power of attorney, parental power of attorney, and revocation of power of attorney).  The court also provides detailed instructions for its forms.

 

Again, my usual advice is to hire an attorney because attorneys have experience, are familiar with the judges, have an emotional detachment to your case, and know the potential pitfalls.  However, sometimes doing something on your own is better than doing nothing and the reality is that not everyone can hire an attorney.

 

This is the link to the Maricopa County Superioe Court's forms (Self Service Center): http://www.superiorcourt.maricopa.gov/SuperiorCourt/Self-ServiceCenter/

 

Good luck!

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What is the difference between guardianship and adoption? There are two key differences that have far-reaching consequences. First, adoption is permanent and guardianship is not quite permanent (even when called "permanent"). Second, in an adoption the birth parents become legal strangers to the child while the adoptive parents become the legal parents as if they had given birth to the child. In a guardianship, the birth parents still have parental rights and the guardian or guardians are not considered the child’s parents.

Legal Status and Decision Making

In an adoption, the birth parents have no rights or responsibilities. The adoptive parents have all rights and responsibilities that once belonged to the birth parents. For example, if the adoptive parents divorce, the family court will have to decide legal decision making, parenting time, and child support between the adoptive parents as if the child were their natural child. Adoption is a life-long, permanent relationship. The adoptive parent decides the child’s legal name, which is usually the adoptive parents’ name. The birth parents do not have the right to have any contact with the child. Therefore, the adoptive parents decide whether the birth parents will have contact with the child.

In a guardianship, the parents usually retain their parental rights. The guardian has the responsibility and right to the child’s care, custody, and supervision. The guardian acts under the juvenile court’s supervision, and must make regular reports to the court, unlike in an adoption. A guardianship is not permanent, and the juvenile court may transfer or terminate the guardianship. The parents may have visitation rights (unless the court orders otherwise) and may still make some decisions, such as religious training, but the guardian will make most other decisions, such as education, health, welfare, and most other decisions. The child will usually keep his or her name and the parents may ask the juvenile court to terminate or transfer the guardianship.

Death and Inheritance

In an adoption, the child (and the child’s descendants) has the same rights to inheritance as children naturally born to the parents. If the parents dies without a will, the adopted child and the adopted child’s children are treated as if the adopted child were born to the parents. If there is a valid will, the will establishes the adopted child’s inheritance rights just like children naturally born to the deceased. The child does not have the right to inherit from the birth parents and the birth parents do not have the right to inherit from the child (unless, of course, the birth parents have named the child as a beneficiary in a valid will or vice versa). Also, adoption assistance continues after the adoptive parents’ deaths or after the juvenile court terminates the adoptive parents’ rights.

In a guardianship, the child is not treated as the guardian’s child for inheritance purposes. The child is still the child of the parents. The child has no right of inheritance from the guardian unless through a valid will. Also, a guardianship subsidy ends upon the death or incapacity of the guardian. Finally, if the child dies, the parent has the rights to claim the body.

Adoption and Guardianship Lawyer

Thomas A. Morton is an Arizona adoption and guardianship lawyer. Adoptions and guardianships are one of the most rewarding areas of my practice because I am really helping a child.

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Thomas A. Morton, P. L. L. C.
2916 N. 7th Avenue, Suite 100
Phoenix, Arizona 85013
(602) 595-6870
info@thomasamortonlaw.com

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