Guardianship of an Incapacitated Adult – a Basic Overview
By: Samantha Garber
An issue that we see arising more and more often in meetings with new clients is concerns regarding elderly, ailing parents. What does one do when a parent is no longer able to make reasoned, basic decisions for him or herself? There are many options that should be explored before taking any action, but the question that comes up most frequently is “Does Mom (or Dad) need a guardian?”
A guardian is an individual appointed by the Court to make lifestyle and healthcare decisions for an incapacitated person. In Arizona, the Probate Court will only appoint a guardian for an adult if that adult is incapacitated and a guardianship is necessary to provide for the demonstrated needs of the adult. Additionally, the Court must also find that there are no other less restrictive means to provide for the needs of the incapacitated adult. This is something that the Court takes very seriously, because by finding that an adult is incapacitated and in need of a guardian, the Court is taking away several important individual rights. For example, after the appointment of a guardian, the incapacitated person will no longer be permitted to make his or her own lifestyle and healthcare decisions. All such choices will be made by the guardian
With this in mind, the process for appointing a guardian consists of a number of key players. Upon the filing of a Petition with the Court, the Court will appoint an investigator to interview the allegedly incapacitated person, as well as family members and others with insight as to the person’s condition and ability to care for him or herself. The Court will also appoint a physician, nurse, or psychologist to evaluate the person’s mental capacity. Finally, the Court will appoint an attorney to represent the allegedly incapacitated person. That attorney’s role is to advocate for what the person wants, which may or may not be what is “best” for the person. All of these appointed individuals will be heard by the Court at an appointment hearing, and then the judicial officer will determine whether the appointment of a guardian is appropriate for the situation.
Seeking appointment of a guardian for mom or dad is an option, but not one that should be taken lightly. Because of its restrictive nature, it should be considered only after discussion with an experienced attorney who can recommend and explain other possible resolutions.