Guardianships from Age 18 to 108

Stephanie A. Bivens

By Stephanie Bivens

Most people think guardianship proceedings involve an elderly individual who can no longer make their own medical and personal decisions due to causes related to aging. While this is certainly common, the need for guardianship for younger individuals is increasing as the population with special needs grows. Whether 18 or 108, when an individual does not have the capacity to protect themselves or to make reasonable decisions about their personal matters including medical treatment, they may benefit from having a guardian appointed to protect them.

When a child becomes a legal adult at age 18, his parents no longer have legal decision making authority over him for his education, health care, religious training, and personal care. The young adult is now legally able to make such determinations for themselves. Is the young adult with developmental or other disabilities, however, in fact, capable of doing so? If not, guardianship may be required or advantageous depending upon the circumstances. In Arizona, a party that is interested in the welfare of a minor who is at least 17 years six months of age and who is alleged to be incapacitated may initiate guardianship proceedings and request that any guardianship order take effect immediately on the minor’s 18th birthday. The guardian will have the legal decision-making authority to ensure ongoing care and other needs are met. In short, the appointment of a guardian allows the guardian to continue to act by court order, as if the child were still a minor.

To obtain a guardianship, the court must determine that (1) the individual is incapacitated, meaning that he is impaired to the extent he lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his personal well-being; (2) the appointment is necessary to provide for his demonstrated needs; and (3) the person’s needs cannot be met by less restrictive means. Determining capacity is important because the degree to which a person is capable of making an informed decision relates to which decisions he or she can make. A person can be competent to make some decisions, but not others. As such, the court may appoint a guardian with or without limited powers.

If you do not practice in the area of guardianship, how is all this relevant to you? What if the parents of that now 18-year-old child with special needs are divorced? One of the problems that arises at the time the child approaches adulthood is the potential for one or both parents to petition for guardianship of their child and re-litigate the legal decision making issues that played out in family court all over again in probate court. To curtail these concerns, Arizona enacted a new statute Dec. 31, 2016, which provides that if a petition for a guardian is filed for a child who is either turning 18 or within two years of turning 18, the court will appoint the person with sole legal decision- making authority as sole guardian, or those with joint legal decision-making authority as co-guardians, unless the court finds the appointment to be contrary to the child’s best interests.

Further, if a legal decision-making, parenting time or visitation order was previously entered in a marriage dissolution, legal separation or paternity action and the petitioner or proposed guardian is a parent of the alleged incapacitated person or a non-parent who has been awarded legal decision-making, the court and case number for that proceeding and a copy of the most recent court order regarding legal decision-making, parenting time and visitation shall be included in the guardianship petition. What does this mean for the family law attorney? Your client needs to know that the impact of the family court decision(s) now will likely extend beyond age 18 for their special needs child in a later adult guardianship proceeding.

What if your estate planning client is a parent or spouse of an adult who is incapacitated and concerned about who will advocate for and ensure their adult child’s or spouse’s needs are met if the client dies or become incapacitated? A parent or spouse, by will or other writing, may appoint a guardian for an unmarried adult child or spouse believed to be an incapacitated person. Typically, the appointment would be effective upon the parent or spouse’s death. However, on petition of the parent or spouse and a finding that the parent or spouse will likely become unable to care for the incapacitated person within two years, the court may confirm the appointing parent’s or spouse’s selection of a guardian and terminate the rights of others to object. Note, the court has a streamlined process to appoint a guardian by will similar to the informal probate process.

In the alternative, the parent or spouse may wish to seek the appointment of co-guardianship during their lifetime with the individual they intend to nominate as successor guardian and request the court grant them concurrent and independent authority to act. Should the parent or spouse co-guardian be unable to act for any reason, the other co-guardian is already in place with full authority to act as sole guardian. A co-guardianship arrangement can be particularly attractive to an older parent or spouse concerned with their own health or life expectancy.

Guardianship can be a valuable legal tool to protect incapacitated adults of any age.

Stephanie A. Bivens is a certified elder law attorney by the National Elder Law Foundation, accredited by the State Bar of Arizona and principal attorney at Bivens & Associates P.L.L.C., which focuses in elder law, special needs and estate planning for families, seniors and persons with special needs. Ms. Bivens is a frequent speaker providing continuing legal education for the state and county bar associations and various community and professional organizations. She serves on the board of directors for PASRS and East Valley Adult Resources Foundation. Visit her website at www.BivensLaw.com or call (480) 922-1010.