Guardianship for Minors

What is guardianship?
In Arizona (language may differ in other states) a guardian can be appointed to make personal, health care and living arrangement decisions for a minor or an incapacitated adult. While the processes are similar, there are important differences between guardianship for minors and for adults. Here we are dealing only with guardianship for minors.

Where are guardianship proceedings initiated?
Guardianship is always a court proceeding–while an individual can nominate someone to serve as guardian, only the court can create the actual guardianship. Arizona guardianship proceedings are conducted in the Superior Courts in each county, and more specifically in the Probate division of each Superior Court. The actual petition for appointment of a guardian must be filed with the Clerk of the Superior Court–in most counties there is a separate office for the Probate Division of the Clerk’s office. There is a different type of guardianship order available in Juvenile Court, but usually only after a finding of “dependency” has been entered.

When can a guardian be appointed?
Before appointing a guardian for a minor child, the court must determine that there are no living parents, that the parents’ relationship has been severed by circumstance or court order, or that the parents consent to the guardianship (or at least do not object). In other words, parents must either sign a consent form or be given notice of the guardianship proceedings and an opportunity to object.

What is the difference between guardianship proceedings in Probate Court and those in Juvenile Court?
Juvenile Court usually handles custody of children in a “dependency” proceeding, which requires proof that the child’s parents are unable to provide parental care and control. Those proceedings can result in a custody order or, in some cases, a guardianship order. Probate Court guardianship proceedings are usually based on either parental consent or lack of objection, and if the guardianship becomes contested it usually must be moved to Juvenile Court.

Who can be appointed as guardian?
Once the court has determined that appointment of a guardian is necessary it can select the guardian who would be in the best interests of the child. The law expresses a preference for the parents’ choice of guardian and for family members, but the child’s best interests are most important.

Can a non-relative be appointed as guardian?
Yes, but there are special requirements when a non-relative serves as guardian for a child. The guardian must submit to fingerprinting and a criminal background check before appointment; since this process typically takes several months it is necessary that non-relatives apply for guardianship early.

When is it necessary to appoint a guardian for a child?
Most school districts require out-of-district tuition for children whose parent or guardian does not live in the district. In order to avoid tuition charges it may be necessary to have a district resident appointed as guardian–the guardian then has responsibility for the care and control of the child. It may also be necessary, or at least desirable, to have a guardian appointed in order to get the child qualified for medical insurance through the guardian’s work. If parents are unavailable it may be necessary to secure a guardian’s appointment to give consent (or withhold consent) for medical treatment.

What is involved in getting guardianship over a minor?
The guardianship process is started by filing a petition with the Superior Court, paying a filing fee and setting a hearing before the judge. Before the hearing date parents need to either sign a consent form or be served; unknown or missing parents can be served by publication in a newspaper. The minor must also sign a consent if he or she is over age 14. At the hearing, the judge will determine whether the procedural requirements have been met, the appointment of a guardian is appropriate, and the proposed guardian is the best available choice. Most guardianship proceedings involving minors are uncontested and are resolved at the first hearing.

What does guardianship cost?
In addition to the filing fee (currently $106) there will be costs for service (unless parents and the minor sign all necessary consents) and certified copies of the final authorization of the guardian. If an attorney is employed to handle the guardianship his or her fees will add several hundred dollars to the cost. If there is a contest the costs may escalate quickly.

Who can terminate a guardianship?
If a parent objects to the continuation of a guardianship, even if he or she originally consented, the guardianship will almost certainly be terminated by the court once the objection is properly filed. There may be a slight delay to give the guardian time to initiate a Juvenile Court proceeding, but the guardianship can not continue over a parent’s objection unless the parental rights have been terminated. If a guardian chooses to resign the court will seek to appoint a successor, but in the absence of any choice the guardianship may be terminated. If the minor turns 18 or dies the guardianship terminates automatically.

If a parent signs a power of attorney is it possible to avoid guardianship?
Arizona law permits a parent to delegate the powers of parental control for six months at a time. Unfortunately most school districts will not accept these powers of attorney to enroll the child, and a guardianship is probably necessary anyway.

What liability does a guardian of a minor have?
In addition to being answerable to the court, a guardian of a minor may be liable for the minor’s misbehavior in at least some circumstances. The guardian is not, however, responsible to pay personally for the minor’s care and maintenance, though most guardians do when they take on the children of family members.

What powers does a guardian have?
A guardian has control over where the child lives, where he or she goes to school and all medical care. The guardian effectively takes over the parental control from the child’s parents.

What rights does a parent have after a guardianship has been granted?
The parent may have the ability to terminate the guardianship, but until it is terminated the parent does not have the right to control the child’s living arrangements or medical care. Visitation rights may be different; the court may have established visitation rights or limited those rights in some fashion and the guardian can usually impose reasonable limitations on the parent’s visitations.

What are “letters” of guardianship?
The court document that actually conveys authority to a guardian is called “Letters of Guardianship” (sometimes it is combined with an Acceptance signed by the guardian and the title may be “Letters and Acceptance” or similar language). The Letters are signed by the Clerk of the Court rather than the judge, but the Clerk will only issue Letters if the judge has entered an order.

Do you need to get certified copies of documents?
In any serious conflict over authority (with, say, the police department if the child’s parent is demanding custody or visitation) it will probably be necessary to have a certified copy of the Letters of Guardianship. Most school districts, doctors’ offices and hospitals will accept copies that have not been certified. It is unlikely that you will need to order more than one certified copy; the cost of certified copies (depending on whether the document is a single page) is usually $18.50 and the cost of a single-page uncertified copy is $.50.

Do I need a lawyer?
Probably not. Most minor guardianships are secured without a lawyer’s involvement. Forms for initiating guardianship over a minor are available at the Arizona Supreme Court‘s website. If the circumstances are unusual, there is likely to be a contest from parents or from other individuals who wish to be guardian, or you are overwhelmed by the complexity of legal proceedings, you may want to at least consult a lawyer and possibly retain one to handle the guardianship for you. You will almost certainly still be required to make at least one court appearance.

Can the guardian live outside the state? Can he or she take the child to live in another state?
Yes to both. If the child is to become a resident of the other state it may make sense to initiate a local guardianship proceeding in that state; you should consult with a competent attorney in the new state to determine whether and under what circumstances the new state will continue to honor an Arizona guardianship.

Where can I get more information and help?
In Pima County (Tucson) and Southern Arizona, the Casey Family KARE Center provides assistance to family caregivers. The KARE Center assists with guardianship, adoption, benefits programs, finding care and support resources and counseling family caregivers. The KARE Center can be reached at 323-4476, or at 4710 E. 29th Street, Building 7, Tucson, Arizona 85711.