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When Does Your Family Member Need Guardianship?

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When do you need guardianship?

Suppose you have a 17-year-old child with a developmental or cognitive disability. Do you need guardianship before they turn 18? Is it OK to wait, or to forego guardianship altogether?

First: what is guardianship?

While your children are minors, you have the authority to make medical and placement decisions for them (we’re ignoring the possibility of divorce court or juvenile court proceedings for the moment). Once each child turns eighteen, though, you lose that automatic power.

You can ask the court to appoint you as guardian for your adult child — but only if the child is “incapacitated.” That term means something different from “disabled.” The court process can be expensive, a little bit overwhelming, and time-consuming. If you live in southern Arizona, you might want to hire a Tucson elder law attorney to complete the guardianship process. That’s what we do.

After an Arizona court appoints you as guardian, you have all the same powers you had over your child while he or she was a minor. That means you can make medical decisions. You can decide where your child lives. Most importantly, you will have access to medical information, agency actions and everything else about your child.

Second: do you need to do this?

We mentioned before that the process is expensive. Is it important to go through it anyway?

Perhaps not. Arizona law gives immediate family members the authority to make medical decisions for an incapacitated person. Most agencies and medical providers will respect that power — at least most of the time.

Why would you not go ahead and get clear legal authority? Did we mention that the process was expensive? It’s also intrusive, and it can be annoying to subject your family dynamics to scrutiny by the court, lawyers and other professionals.

The guardianship process also removes some power and autonomy from your child. He or she may no longer be allowed to vote, to drive, or make any decisions for himself or herself. Will that make a significant difference to him or her? Perhaps.

Let’s suppose that you decide to go ahead. Arizona, like at least some other states, lets you start the process before your child’s 18th birthday. Your parental authority would transition seamlessly to the guardianship.

An illustration of how this might work

In a recent Texas case, family members petitioned for guardianship over their daughter (we’ll call her “Amber” here) just before she turned 18. Amber’s doctor signed a letter indicating that she was completely unable to make her own decisions. The court appointed an attorney to advise Amber; her attorney reported that she wanted the guardianship to be granted.

Amber’s incapacity was pretty clear. Her tested IQ was in the low 50s. She could speak but had a hard time with full sentences. Most of the time she answered “yes” to any question asked. She told her lawyer that she wanted her parents to be able to take care of her.

The Texas court appointed an investigator to evaluate Amber and make a report. The investigator said that Amber was clearly incapacitated, and her parents appropriate. But, reported the investigator, no guardianship was necessary. Amber didn’t need a guardian to assure her care was appropriate, since her parents could help her make decisions without the legal authority.

Person-centered planning

Amber’s court investigator particularly suggested that “person-centered planning” could help her parents engage Amber in decision-making. Texas, as it happens, is unusual in having a state law that particularly endorses the related concept of “supported decision making” as an alternative to guardianship. The court investigator suggested that the guardianship should be denied, and Amber’s rights and liberties protected by implementing a shared decision-making model like person-centered planning.

The probate judge agreed with the court investigator. Without impugning Amber’s parents, their motives or their ability to care for her, the judge denied their guardianship petition. So long as care-taking decisions could be made somehow, and her care needs could be met, Amber did not need guardianship.

Amber’s parents appealed the decision. The Texas Court of Appeals agreed with them, and ordered the probate judge to appoint Amber’s parents as guardians.

The appellate judges ruled that Amber’s disability is complete. She is unable to provide her own food, clothing or shelter without her parents’ assistance. Even if someone very patiently explained the concepts to her, she could not understand a power of attorney, a supported decision-making agreement or any other legal document. That, ruled the court, meant that there was no less-restrictive alternative available. Amber would need guardianship. Guardianship of A.E. (June 14, 2018).

What about Arizona?

Would Amber’s parents prevail in Arizona? Probably.

Texas’ law is among the most progressive in the country. Actual court practices vary (by state and locality), but it seems likely that an Arizona probate judge would agree with Amber’s parents and grant guardianship.

At Fleming & Curti, PLC, we are very supportive of alternatives to guardianship. We hate to see parents spend money when their child might not ever need guardianship. We try very hard to find less-restrictive approaches that preserve the individual’s liberty and autonomy as much as possible.

Parents, though, sometimes feel the need to pursue guardianship — and we do not try to convince them that they are wrong. They might be worried about someone taking financial or even sexual advantage of their child. The child’s disability might make it hard or even impossible to protect them, and the guardianship might help. Sometimes, parents even need guardianship in order to be clearly heard in doctor’s offices and IEP (individualized education program) meetings.

The key, we think, is to discuss the choices with parents as their child nears age 18. We often engage the child in the conversation, as well. If your child has a disability, will he or she need guardianship? There is seldom an easy, always-comfortable answer.


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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.