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Guardianship, Conservatorship and Jury Trials in Arizona

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Jury trial


Suppose someone has asked the Arizona courts for appointment as your guardian and/or your conservator. A trial has been set to consider the petition. Do you think you should be entitled to a jury trial before a guardian or conservator is appointed?

Under Arizona law, you are entitled to a jury trial — at least on the guardianship part of the petition. The guardianship statutes expressly say you can demand a jury. You may not be able to insist on a jury trial on the conservatorship portion of the proceeding, however.

The Conundrum

But here’s a logical dilemma: if you are in need of someone to make your personal decisions for you, how could you ever waive your right to a jury trial? In other words, is it possible that every guardianship petition should require that a jury be empaneled, the matter be laid out with full formality, and the decision made by your peers?

That was the essential argument made in a recent Arizona Court of Appeals case. The facts were pretty straightforward. Two of the daughters of Randy Stevens (not his real name) asked the court to be appointed as his guardian and conservator, saying that Randy was not able to make his own personal or financial decisions. After a trial — Randy was present and participated — the probate judge appointed one daughter as guardian of his person and the other as conservator of his estate.

Randy had not asked for a jury trial. The fact that his case was decided by the judge (without a jury) became the basis for his appeal. His argument: the right to a jury trial is very important, and should be waived only with a clear and explicit waiver. Oh, and someone who has a guardian or conservator appointed probably can’t understand the proceedings well enough to effectively waive the jury, anyway.

The Law

A word about language: in Arizona, at least, a guardian can be appointed to make personal decisions for someone who is incapacitated. A conservator can be appointed to make financial decisions for someone who needs protection. Usually the two questions are addressed in a combined proceeding.

Arizona law does mandate a jury trial in a guardianship proceeding — if the subject of the proceeding requests it. The statutes do not say that any waiver must be informed or explicit. Instead, the law puts the burden on the individual to request a jury trial.

Nothing in Arizona law requires a jury trial for a conservatorship proceeding. It might be odd, but it would be possible for the judge and jury to split duties. In other words, the jury could decide whether a guardian was necessary. In the same proceeding and at the same time, the judge could decide the conservatorship.

The Appeal

Randy (through his lawyers) argued that the probate judge should have discussed Randy’s right to a jury trial with him. The waiver should have been accepted only if he clearly understood and preferred to have the judge rule. Since guardianship and conservatorship are so intertwined, he should have been granted a jury trial on both parts of the proceeding.

The Court of Appeals did not agree. It ruled that Randy needed to say he wanted a jury trial. If he had, then the probate judge could have dealt with whether the jury would decide both questions.

The appellate judges noted that Randy had not raised his jury trial question until after the probate judge had ruled. Because he had not raised it earlier, he had waived his right and could not prevail on appeal. But, said the Court of Appeals, even if that were not the case he still could not have prevailed. In Re Guardianship and Conservatorship of Sommer, April 13, 2017.

Practical Effects

Though Arizona law has provided for jury trials in guardianship cases since at least 1974 (when we adopted the Uniform Probate Code), very few have been conducted. In fact, most regular practitioners agree that there might not have been a single jury trial in a guardianship case in over four decades. The cost, delay and complication of a jury trial might be daunting. The desire to keep family issues private might also discourage people from asking for jury trials.

Left unanswered by the Court of Appeals decision in Randy’s case: exactly how would a jury trial work? It might be that the jury’s verdict is only “advisory” — that the probate judge can make the final decision even with a jury. Also, as noted above, any request for appointment of a conservator would be treated separately. The jury might only have the guardianship portion of a petition to address in any case.

Will heightened focus on jury trials mean that some are scheduled in the near future? Perhaps. The cost and complexity of guardianship proceedings have both increased steadily for several decades. This trend might continue, and jury trials would certainly contribute to it.

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Robert B. Fleming


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


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


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.

Famous people's wills

Matthew M. Mansour


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.