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Can a person under guardianship ________?

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elder man voting in ballot box

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.

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Robert B. Fleming

Attorney

Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman

Attorney

Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson

Attorney

Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

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Matthew M. Mansour

Attorney

Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.