Sometimes, clients come to us seeking guardianship for an incapacitated adult in their life. They may have an elderly parent with dementia. Or, they may have a disabled child who is now becoming an adult. Either way, clients often have questions about what powers a guardianship actually gives them. They also have questions about what rights their potential ward retains.
Under Arizona law, “A guardian of an incapacitated person has the same powers, rights and duties respecting the guardian’s ward that a parent has respecting the parent’s unemancipated minor child.” There are of course exceptions to this rule, but decision-making authority can be fairly broad in a guardianship. A guardian’s powers can also be limited by the court to specific decisions. For example, the court may limit a guardian to making medical decisions or decisions about living arrangements. While guardians have the authority to make important decisions for an incapacitated person, they are supposed to take into account the incapacitated person’s wishes and encourage maximum self-reliance and independence.
Can a guardian place a ward in an in-patient mental health care facility?
Sometimes, a person seeking guardianship is concerned about the mental health of the incapacitated person. The guardian may even think that the ward needs treatment in an in-patient mental health care facility. In Arizona, in both general and limited guardianships, a guardian does not have authority to place a ward in an inpatient mental health care facility. Unless they have been granted specific authority, that is.
Guardians who need this power can petition the court for that authority. The guardian must show that the ward is incapacitated and is likely to be in need of inpatient mental health care. They also must show the person is likely to be in need of such care within the period the court is granting authority over. The petitioner must demonstrate this by way of clear and convincing evidence. When deciding whether to grant this authority, the court must consider the disability of the ward and the foreseeability of their needs. The court should also limit the guardian’s authority to what is necessary to obtain care for the ward in the least restrictive environment and limit the duration of the guardian’s ability to consent.
Can a person under guardianship vote?
It depends. In Arizona, a person under a general guardianship will lose their right to vote when they are appointed a guardian. In a limited guardianship the judge decides whether the incapacitated person will retain the right to vote. To retain the right to vote, the judge must also find at the hearing that the person understands the process and right to vote by clear and convincing evidence. The petitioner should include their position on whether or not the incapacitated person should retain the right to vote.
But note: a very recent Arizona Court of Appeals decision may well radically change these rules. In a case called Webb v. Coconino, the Arizona intermediate appellate court ruled that Arizona’s statutory scheme violated the rights of the ward — in that case. Does that mean that future guardianship orders will have no effect on the individual’s right to vote?
How about existing guardianship orders? And what if a judge has already ruled that the individual could not prove they should retain the right to vote? Those questions remain unanswered for the moment. Stay tuned — and in the meantime, let us know about your experience with the voting system and Arizona guardianship. We might be able to help.
Can a person under guardianship drive?
In Arizona, the appointment of a guardian may also suspend the incapacitated person’s right to drive. Once again, a judge may decide to allow a person to drive. The judge must find that the incapacitated person can operate a vehicle competently and safely. If the petitioner’s petition on the incapacitated person’s driving priveleges should specifically request that in the petition. They should also present medical or other evidence to the judge that the person is able to drive safely.
A ward whose driving privileges have been suspended or revoked may file a request to reinstate driving privileges. If the request is filed, the court will consider evidence (medical or other types, including a graduation from a driving school) and make a decision on whether the person’s incapacity prevents them from safely operating a vehicle.
Can a person under guardianship get married?
In Arizona, the effect of a guardianship on a person’s right to marry is unclear. There isn’t much case law and the statutes are not precise. The issue is pretty rare and usually only comes up when a person gets married and it is challenged afterwards. We have written in the past about cases out of Minnesota, Florida and Florida again that have explored the issue. While the effect of guardianship on marriage in Arizona is unclear, it is likely that an incapacitated adult can get married without permission from the guardian. It’s also possible that later it could be held up as valid under Arizona law — and maybe even over the objections of the guardian.
