Parents and Guardians should have a succession plan. Most people know that a will’s primary function is to determine where their property goes when they die. For people with minor children, the will should serve another function: name a guardian if the parent dies before the child reaches the age of majority — age 18. Some parents (including me) put off preparing a will because it’s so difficult to think about who should do that job. Court-appointed Guardians often have a similar struggle.
Succession Planning Statute
In Arizona, there’s a law (A.R.S. 14-5301) that directs how to nominate who comes next. It says the nomination can be in a “will or other signed writing.” A trust or stand-alone document should work, and there’s no requirement for witnesses or a notary. So it’s actually easier than a will, which typically has witness requirements.
The appointment-of-a-guardian-by-will statute applies to minor children and spouses who are believed to be incapacitated. Although court-appointed Guardians are not specifically addressed in the law, it still applies. A Court-appointed Guardian of an incapacitated person has “the same powers, rights and duties . . . that a parent has respecting the parent’s unemancipated minor child . . .” As a result, Court-appointed Guardians can utilize this same law to appoint successor guardians in their wills or other writings.
Triggering the Succession Plan
There are three things that can trigger the appointment of a guardian in a writing. The appointment happens upon the first of:
1) The death of the appointing parent/spouse/guardian,
2) Court adjudication of incapacity of the appointing parent/spouse/guardian, or
3) A written determination by a physician who has examined the parent/spouse/guardian that the appointing person is no longer able to care for the incapacitated person.
Although the statute suggests the appointment will go into effect with a fairly simple notice process, a typical Guardianship Court proceeding with full due process must formalize the new Guardian’s authority. That means other family members must be told about the proceeding and also that interested parties can object. However, if a parent, spouse or Guardian makes the appointing in a writing, the judge should give that individual a strong preference.
Training Your Successor
Merely leaving a writing behind often isn’t the ideal succession plan. Parents and court-appointed Guardians should consider enlisting successors while they are alive – before they become incapacitated or die. Guardians can request that one or more Co-Guardians be appointed while the Guardian is still able to serve. Say, the parents of a disabled adult have been serving as Guardians for decades. As they age, it makes sense to add one or more of the disabled child’s siblings to the care team. The new Guardians can become familiar with the duties and obligations of acting as Guardian. When managing the affairs of an incapacitated person, it’s always a good idea to plan ahead. Disruptions can be traumatic, especially in a crisis.
As with the initial Guardianship and appointment by writing, a Court proceeding with full due process is required. But, if needed, the serving Guardian is there to explain to the Court why their choice is best suitable.
Using Independent Authority
The Co-Guardians can request that they act with independent authority, meaning any of the Guardians can make decisions. With this authority, the original Guardians can gradually delegate more and more decisions to the new Guardians. It builds in convenience and flexibility. And, ideally, by the time the original Guardians become incapacitated or die, their cohorts are prepared to go it alone. Co-Guardians cannot do everything independently, however. All Guardians must sign off on the annual guardianship report, helping ensure that all who are appointed remain engaged.
Temporary Succession Plans
Another Arizona statute that parents employ also applies to Court-appointed Guardians. Parents, via A.R.S. § 14-5104, can delegate powers regarding the care, custody or property of a minor child (except consenting to marriage or adoption) to another person via a power of attorney document. These powers can last up to six months. Common reasons for using these powers of attorney are if the parent will be out of town for a period of time or if a non-parent shares with child-care duties and needs legal authority to make decisions.
Guardians of incapacitated people can employ temporary parental powers of attorney, too. It’s a way to teach potential future guardians what serving a loved one is all about.
Although it can be difficult to think about no longer being here or being capable to care for you special person, it’s important to implement a succession plan.
