Questions about guardianship

Clients (and readers) often ask us questions about guardianship. This week we’re going to lay out some of our favorites, and offer up some answers. Remember, though: we are Arizona attorneys, and the answer in Arizona might be different from that in another state. Also, note that we are only posing questions about guardianship (of the person). Conservatorship (of the estate) questions will wait for another day.

What about guardianship of the estate?

We don’t use that language in Arizona. Other states might have guardianship of the estate. A few even have conservatorship of the person. Not Arizona.

In Arizona, we talk about guardianship of (or “over”) a person, and conservatorship of their estate. That’s the language of the Uniform Probate Code and its progeny, including the Uniform Guardianship, Conservatorship and Other Protective Arrangements Act. That’s the language we’ve used in Arizona since 1974. In this discussion, we’re ignoring questions about conservatorship — but maybe we’ll tackle that topic in another Elder Law Issue newsletter.

Can my mom name me as her guardian?

Well, yes — sort of. Your mom (or your husband, or your adult child) could nominate you to be their guardian. But only a court can appoint you as guardian. And once the court has appointed you in that role, you will need to report (annually, in most cases) to the court and follow the court’s direction.

Of course, your competent mother (or husband, or adult child) could sign a power of attorney naming you to that role. In most cases that would avoid any need for a guardianship. But it does require that they sign the document while still competent. So it’s not very helpful if your family member has already become incompetent.

How much will it cost to get guardianship?

That’s a tough question. In our community (and in 2021), we usually predict that the total cost will be in the range of about $3,000 to $5,000. That includes our fees to represent you, plus the court filing fees and fees for the court-appointed attorney and investigator. In Arizona, every guardianship proceeding requires a separate lawyer to represent the person who is alleged to be incapacitated.

Does that seem like a lot of money to get your familial relationship confirmed and to give you the authority you obviously need? It is. But remember that there is a court proceeding involved, and several professionals participating. And, of course, if your family member wants to contest the proceedings, the costs can go higher.

One interesting note: in 2012 we wrote about the cost of guardianship. We predicted a pretty similar number then. It surprises us that the cost has not climbed dramatically in the past decade.

If I am guardian, what powers do I have?

Arizona law says that a guardian of an adult incapacitated person has all the powers that a parent has over their unemancipated minor child. That’s pretty broad power. But it’s not absolute; you can’t prevent the person from getting married, for instance (though you might be able to invalidate the marriage after the fact). Your consent to surgery to prevent pregnancy may not be effective.

You can, however, initiate or continue a divorce proceeding. And guardianship normally removes the person’s ability to drive, vote, purchase a weapon, or enter into any contracts — unless there is separate court approval for some or all of those.

But here’s an important point: as guardian, you are not supposed to substitute your own judgment for that of the other person. If, for example, they had long maintained that they would not want to be kept alive on a ventilator, you are expected to follow their longstanding wishes, not your own view of the “right” answer. Similarly, if they had always insisted on getting full treatment, you should not use your guardianship to remove life-sustaining treatment.

Also, keep this in mind: the court thinks it’s the ultimate guardian, and they’ve just delegated the hard work to you. So your authority is always subject to the after-the-fact review of the judge.

As guardian, am I liable for care costs?

No. Unless, that is, you have actually signed on to cover those costs. Which the adult care facility you check your mother (or husband, or adult child) into will be happy to make it easy for you to agree to.

Speaking of your spouse: you may be liable for their care costs because it is a community debt. The fact of guardianship doesn’t change that, though — so getting a guardianship does not make you more liable.

Can I charge to be guardian?

Yes. You need to keep good records of the time you spend. And, of course, the person over whom you secure guardianship will need to have funds to pay your fees. But you do not have to work for free.

What other questions about guardianship should I be asking?

We’re confident that you have lots of additional questions. That’s what we’ll review in the initial consultation when you set up an appointment. And yes, we do charge a consultation fee for those meetings. But we should be able to give you a lot of information, and perhaps even avoid the need for further legal proceedings, when you make that appointment.

When you make the appointment, we’ll ask you to complete a questionnaire. It’s really essential for us to get the information in order to give you any meaningful advice. We know that we ask a lot of questions — but that’s what helps us focus the conversation on what you actually need to know.

With luck, this helps answer some of your questions about guardianship. We look forward to discussing the process with you when you’re ready to make that appointment and come in to see us.


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