Non-lawyers often assume that courts regularly appoint guardians from a list of people or agencies they have dealt with before. In fact, the people involved almost always choose the guardian, rather than the judge herself. Many states (including Arizona) do have a method for vetting a potential guardian, though. The role may be named something else, but the title in Arizona says it all. The court appoints a “court investigator” to report on the potential guardian (or conservator).
The rules are different in different states, of course. The court investigator might be called a “visitor” or even part of a “committee.” But the idea is the same in most states: someone files a petition for guardianship (or conservatorship over assets) nominating a specific person, group of people or entity. The court appoints an investigator who files a report regarding the subject of the proceedings, their placement and the person or entity seeking guardianship.
To be clear: some state probate judges do appoint guardians from a list the judge maintains. But not in most states — and certainly not in Arizona (or, as it turns out, Colorado).
A court investigator’s report may be mandatory
In some states, the court appoints an investigator in every guardianship or conservatorship case. That idea was codified in the Uniform Probate Code, which Arizona originally adopted in 1973. There have been a number of modifications (of both the uniform law and Arizona’s version) in the intervening decades, but the idea of having a professional evaluation of prospective guardians has been in the Arizona law since that early date.
The Uniform Probate Code has only been fully adopted in 22 states, but the ideas and structure have become widespread. Arizona’s adoption was the fifth in the country; interestingly for our story today, the state adopting the UPC just before Arizona was neighboring Colorado.
Barney Arguello, an adult diagnosed with a developmental disability, mental health issues and dementia, lives in Pueblo, Colorado. He lived for many years with his parents in Denver, but moved to the Pueblo area about sixteen years ago when his mother died. Barney lives in a group home near his sister Lynn.
Barney’s care home supervisor files a guardianship petition
When Barney needed medical decisions made in 2016, his care home supervisor petitioned for appointment of a guardian to handle his medical care. The Colorado court appointed a court investigator to interview Barney, his proposed guardian and family members, and to report to the court.
Meanwhile, two sisters petitioned for their own appointment as Barney’s guardian. That caused the care home supervisor to nominate the original guardian plus another sister to serve as co-guardians.
The court investigator diligently investigated everyone, and filed three interrelated reports. She suggested that the non-family nominee should not serve because she had a potential conflict of interest. She worked for an agency that contracted to provide care management services for Barney. The two sisters who had filed their own petition wanted to move Barney back to Denver. The court investigator did not think that was in his best interests. The combination of a professional guardian and one other sister did not look good to the investigator, since the conflict of interest would still be present. Besides, the sister who would have served with her was elderly, ill, and not particularly close to Barney.
What’s a judge to do?
Faced with the conundrum and wanting the best for Barney, the probate judge decided that none of the proposed guardians would work. Because the judge had experience with the options available in the Pueblo area, she just decided to name the ARC of Pueblo to be Barney’s guardian.
The professional guardian candidate (Barney’s care manager) appealed. First, she argued, there was no conflict in her roles. As care manager she was not a direct care provider, and she was already charged with acting in his best interests. She also argued that the court investigator had not evaluated ARC of Pueblo as a potential guardian, and that was required before they could be appointed.
The Colorado Court of Appeals partially agreed. The professional care manager provided “substantial services or assistance” to Barney, and therefore could not be appointed. But the appellant was right about the court investigator; the court could not appoint a guardian until the investigator had evaluated the choice. Arguello v. Balsick, February 7, 2019.
What about Arizona?
Arizona appellate courts would likely come to the same conclusion. After all, the Arguello case is based on the Uniform Probate Code, and we share that law with Colorado.
There are differences, however. For example, Colorado’s version of the UPC did not require the probate court to appoint an attorney to represent Barney. Under Arizona law, that would have been mandatory. The involvement of an attorney might have made it more likely that a suitable guardian could have been located — and vetted — before the court hearing.
