We often get asked to file an “emergency” guardianship, because circumstances seem so extreme. We explain to clients that their sense of urgency might not be an emergency in the court’s view.
Last week we read an Arizona Court of Appeals decision that addressed when an emergency guardianship might be necessary. The decision was an unreported (memorandum) decision — that means that it doesn’t have value as a precedent in future cases. We usually don’t spend a lot of time analyzing those non-precedential decisions in these newsletters. But the logic is likely to get applied in future cases, so it’s probably worth describing.
Besides, this was the second time in the Court of Appeals for this particular case, so we think it’s worth our review. Besides, we hope to be able to share this information with future clients who think they might need an emergency guardianship.
The first legal go-round
Back in March, 2023, Claudia Herrera worried about her father’s care. She lived in Phoenix, and her father was in an assisted living facility in Yuma, about three hours west. His wife Ana had placed him there, and had a power of attorney authorizing her to act on his behalf.
While Ana Herrera was visiting family out of state, Claudia went to Yuma to take matters into her own hands. She hired an attorney and filed a guardianship petition in the Yuma County Superior Court. And she alleged that there was an emergency requiring her immediate appointment, before notice could be given to Ana or other family members.
The Judge, having only heard Claudia’s version of the facts, suspended Ana’s power of attorney and named Claudia as temporary guardian. He also set a follow-up hearing for three weeks later.
Meanwhile, Claudia immediately moved her father into her home in Phoenix. She filed a notice with the court that his address had changed, and asked to transfer the proceedings to Maricopa County, the Phoenix-area court.
At the follow-up hearing, with Ana (and Rafael) present, the Yuma County judge ruled that there had not been an emergency justifying the no-notice order. He rescinded Claudia’s temporary appointment and affirmed Ana’s power of attorney.
The Court of Appeals weighs in
There were some more proceedings in Yuma County, resulting in the judge ordering Claudia to return her father to his assisted living facility. Claudia appealed the dismissal of her temporary guardianship and the order to return her father to Yuma.
On this first visit to the Court of Appeals, the appellate judges affirmed the trial court’s orders. They agreed that the trial judge had the power to find that there was no emergency justifying a no-notice hearing, and to undo the earlier orders. And it was within the judge’s authority to order Claudia to return her father and approve Ana’s power of attorney.
In this first proceeding, Ana had asked the trial judge to order Claudia to pay her attorneys fees and costs, but that portion of the order does not seem to have been appealed. The Court of Appeals did deny an award of attorneys fees for the appeal itself. In re Guardianship of Herrera v. Herrera, March 8, 2024.
But the litigation continues
Meanwhile, Rafael’s daughter and wife continued to spar over his care and his wishes. Claudia secured an “order of protection,” alleging that Ana had committed or threatened an act of domestic violence. The (Maricopa County) court that entered the order of protection later modified it. Ana’s could not go to Claudia’s home, but she could see Rafael.
The Yuma County judge expanded on his earlier orders, directing Claudia to return her father. At a hearing in Yuma in August, 2024, Claudia brought her father to the court. After the hearing Ana took him back to his assisted living facility. Seventeen months of litigation established that there had been no emergency in the first place. And Claudia moved to dismiss her original guardianship petition. She cited the mental health and financial toll the dispute had caused her family.
Even then the proceedings continued. Ana sought a return of Rafael’s funds expended by Claudia during the time she had control over her father. She also sought an award of the fees and costs she had incurred in fighting Claudia.
Ultimately the trial judge completely dismissed the temporary orders. But he also ordered Claudia to pay a total of about $46,000 in fees, costs (including travel expenses she had reimbursed herself and other family members) and return of Rafael’s pension funds she had accessed during her guardianship.
Back to the Court of Appeals
Claudia appealed again. The decision last week was based on that second appeal, and primarily addressed the award of fees, costs and return of funds. Once again, the decision was unreported. And once again, Claudia lost on nearly every point. One exception: the Court of Appeals reduced the $46,000 sanction award by the $11,152 paid by Ana for the first appellate proceeding. That request had been denied by the appellate court the first time, and the trial judge should not have included it in the sanctions this time, ruled the appellate judges. In the Matter of the Guardianship of Herrera, November 28, 2025.
The bottom line: the emergency guardianship was never needed, even though Claudia undoubtedly thought her father’s care was in crisis. And the acceleration of the first hearing by three weeks ended up costing tens of thousands of dollars. It also took nearly two-and-a-half years of litigation. Slowing down might have resulted in better care and far less conflict. It certainly would have given everyone a chance to be heard.
One Response
How sad that this was only about the daughter and wife. No one addressed what was best for the father/ husband. As one who recently went through hell trying to get a decent quality of life for a friend while watching her be treated in a manner no human being should ever go through, and watching the agencies tasked with ensuring laws are followed fail. I’m disgusted with Az’s elder care