Close this search box.

Succession Planning for Parents and Guardians

Print Article

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.



Stay up to date

Subscribe to our Newsletter to get our takes on some of the situations families, seniors, and individuals with disabilities find themselves in. These posts help guide you in the decision making process and point out helpful tips and nuances to take advantage of. Enter your email below to have our entries sent directly to your inbox!

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.