You find yourself at a crossroads. A disabled family member either has extreme difficulty or is incapable of managing their affairs. You want to assist them and have heard about the concept of guardianship. So you end up calling a law office to get started on the process… but should you?
The call to a law office is always a good start. But a good lawyer will often tell you: There are a variety of reasons why guardianship may not be necessary. Let’s review guardianship vs the alternatives.
Guardianship in Arizona
Per Arizona Revised Statutes (ARS) §14-5304, a court must be convinced that a person is “incapacitated”. The judge must also find that their needs cannot be met without a guardianship. This will require a doctor’s evaluation, filing fees and attorneys’ fees. Attaining guardianship also requires the potential guardian to submit their fingerprints for a background check. Once guardianship has been granted, the guardian will have to submit reports as requested by the courts (ARS §14-5312). Additionally, there is a chance the guardianship could be contested… resulting in potentially expensive and unproductive litigation.
Beyond these factors, guardianship is a very restrictive measure for a loved one who needs support. It gives the guardian the same authority over the individual as a parent has over their unemancipated minor child (ARS §14-5312). This type of authority can lead to abuse of the person found to be incapacitated. It can also be more legal machinery than is necessary in individual cases. Attorneys often hesitate to recommend a guardianship as the first solution.
Another important concept to note: if the incapacitated loved one has substantial assets (i.e. more than what is needed for their care ARS §14-5312), a conservatorship may be needed. That proceeding would be in addition to the guardianship, which can further escalate costs, time and court oversight. In some cases, the conservatorship may be the only thing that is required.
An alternative: powers of attorney
Durable powers of attorney may save a lot of hassle. Unlike guardianships and conservatorships, they do not require court oversight.
Agents named in a health care power of attorney can make medical decisions when the loved one in question is incapable of making decisions (§36-3223). If your loved one has designated you as their agent, you can act on their behalf with all the authority you would have if you were their legal guardian. This is less restrictive for your loved one and is easier on the agent. No court reports, and no continuing involvement of legal advisors (although legal counsel may still be a good choice in some scenarios).
Powers of attorney can also take effect immediately instead of when a loved one becomes incapacitated (ARS §14-5501). That can avoid the necessity to “prove” the incapacity before you can begin to assist your loved ones.
There is a catch; however, that your loved one must sign the power of attorney before they are incapacitated (ARS §36-3221). This may require involving counsel to prepare the document for them, which will also incur some cost. That cost, however, should be a fraction of the cost of gaurdianship.
It is also difficult to set up powers of attorney during an emergency. The emergency itself may leave a loved one unable to sign documents. That said, emergency guardianships may also not be the correct path forward.
Additionally, the validity of documents and decisions made by those acting as agents can be challenged in court (ARS §36-3206). Such legal challenges are rare, however.
But do you need any documents?
Arizona law also provides an alternative to guardianship that is available without much fuss at all. A family member may have the ability to make medical decisions without a guardianship OR a power of attorney.
ARS §36-3231 establishes a priority list of “surrogate decision makers.” That list includes spouses, parents, adult children and even more remote family members. The highest-ranking available relative on that list can make most medical decisions for an incapacitated adult in Arizona.
There are some caveats to the use of the surrogate decision makers’ list. For one thing, the Arizona legislature decided not to give anyone on the list the power to authorize withholding of life-sustaining treatment (like artificially-provided food or fluids). Also, the surrogate decision maker takes a back seat to court-appointed guardians or individuals named in a health care power of attorney. But the surrogacy arrangement is an excellent alternative at least some of the time. And it can save a lot in legal fees and court costs.
Other alternatives?
There is always the option to hire a personal caregiver for a disabled loved one. This is more useful for those suffering from a physical disability rather than those that lack capacity and have trouble paying their bills, but it is an option that likely won’t require any court involvement as long as your loved one consents. We discuss whether caregivers should be classified as employees or independent contractors here.
2 Responses
Link to the statute in the paragraph regarding conservators goes to info on guardianships. Can you provide a link to the statute pertaining to conservators?
Sure. To be clear, the reference to guardianship statutes was to make the point that a conservator may not be necessary if the person’s assets are limited and being used just for their care. But (unsurprisingly) there is a whole set of statutes describing conservatorships, when they might be appropriate, and how they are to be administered. Arizona Revised Statutes Title 14, Chapter 5, Article 3 is where most of the guardianship statutes reside. Title 14, Chapter 5, Article 4 is the Conservatorship Article, and includes one particular statute that tells you what a petition has to include (ARS §14-5404). That’s as good a reference as we can give for a single statute that gives the general kind of information we think you’re looking for.
We hope that helps.