What is guardianship?
In Arizona (language may differ in other states) a guardian can be
appointed to make personal, health care and living arrangement decisions
for a minor or an incapacitated adult. While the processes are similar,
there are important differences between guardianship for minors and for
adults. Here we are dealing only with guardianship for minors.
Where are guardianship proceedings initiated?
Guardianship is always a court proceeding–while an individual can
nominate someone to serve as guardian, only the court can create the
actual guardianship. Arizona guardianship proceedings are conducted in
the Superior Courts in each county, and more specifically in the Probate
division of each Superior Court. The actual petition for appointment of
a guardian must be filed with the Clerk of the Superior Court–in most
counties there is a separate office for the Probate Division of the
Clerk’s office. There is a different type of guardianship order
available in Juvenile Court, but usually only after a finding of
"dependency" has been entered.
When can a guardian be appointed?
Before appointing a guardian for a minor child, the court must
determine that there are no living parents, that the parents’
relationship has been severed by circumstance or court order, or that
the parents consent to the guardianship (or at least do not object). In
other words, parents must either sign a consent form or be given notice
of the guardianship proceedings and an opportunity to object.
What is the difference between guardianship proceedings in Probate
Court and those in Juvenile Court?
Juvenile Court usually handles custody of children in a
"dependency" proceeding, which requires proof that the child’s
parents are unable to provide parental care and control. Those
proceedings can result in a custody order or, in some cases, a
guardianship order. Probate Court guardianship proceedings are usually
based on either parental consent or lack of objection, and if the
guardianship becomes contested it usually must be moved to Juvenile
Court.
Who can be appointed as guardian?
Once the court has determined that appointment of a guardian is
necessary it can select the guardian who would be in the best interests
of the child. The law expresses a preference for the parents’ choice
of guardian and for family members, but the child’s best interests are
most important.
Can a non-relative be appointed as guardian?
Yes, but there are special requirements when a non-relative serves
as guardian for a child. The guardian must submit to fingerprinting and
a criminal background check before appointment; since this process
typically takes several months it is necessary that non-relatives apply
for guardianship early.
When is it necessary to appoint a guardian for a child?
Most school districts require out-of-district tuition for children
whose parent or guardian does not live in the district. In order to
avoid tuition charges it may be necessary to have a district resident
appointed as guardian–the guardian then has responsibility for the
care and control of the child. It may also be necessary, or at least
desirable, to have a guardian appointed in order to get the child
qualified for medical insurance through the guardian’s work. If
parents are unavailable it may be necessary to secure a guardian’s
appointment to give consent (or withhold consent) for medical treatment.
What is involved in getting guardianship over a minor?
The guardianship process is started by filing a petition with the
Superior Court, paying a filing fee and setting a hearing before the
judge. Before the hearing date parents need to either sign a consent
form or be served; unknown or missing parents can be served by
publication in a newspaper. The minor must also sign a consent if he or
she is over age 14. At the hearing, the judge will determine whether the
procedural requirements have been met, the appointment of a guardian is
appropriate, and the proposed guardian is the best available choice.
Most guardianship proceedings involving minors are uncontested and are
resolved at the first hearing.
What does guardianship cost?
In addition to the filing fee (currently $106) there will be costs
for service (unless parents and the minor sign all necessary consents)
and certified copies of the final authorization of the guardian. If an
attorney is employed to handle the guardianship his or her fees will add
several hundred dollars to the cost. If there is a contest the costs may
escalate quickly.
Who can terminate a guardianship?
If a parent objects to the continuation of a guardianship, even if
he or she originally consented, the guardianship will almost certainly
be terminated by the court once the objection is properly filed. There
may be a slight delay to give the guardian time to initiate a Juvenile
Court proceeding, but the guardianship can not continue over a parent’s
objection unless the parental rights have been terminated. If a guardian
chooses to resign the court will seek to appoint a successor, but in the
absence of any choice the guardianship may be terminated. If the minor
turns 18 or dies the guardianship terminates automatically.
If a parent signs a power of attorney is it possible to avoid
guardianship?
Arizona law permits a parent to delegate the powers of parental
control for six months at a time. Unfortunately most school districts
will not accept these powers of attorney to enroll the child, and a
guardianship is probably necessary anyway.
What liability does a guardian of a minor have?
In addition to being answerable to the court, a guardian of a minor
may be liable for the minor’s misbehavior in at least some
circumstances. The guardian is not, however, responsible to pay
personally for the minor’s care and maintenance, though most guardians
do when they take on the children of family members.
What powers does a guardian have?
A guardian has control over where the child lives, where he or she
goes to school and all medical care. The guardian effectively takes over
the parental control from the child’s parents.
What rights does a parent have after a guardianship has been
granted?
The parent may have the ability to terminate the guardianship, but
until it is terminated the parent does not have the right to control the
child’s living arrangements or medical care. Visitation rights may be
different; the court may have established visitation rights or limited
those rights in some fashion and the guardian can usually impose
reasonable limitations on the parent’s visitations.
What are "letters" of guardianship?
The court document that actually conveys authority to a guardian is
called "Letters of Guardianship" (sometimes it is combined
with an Acceptance signed by the guardian and the title may be
"Letters and Acceptance" or similar language). The Letters are
signed by the Clerk of the Court rather than the judge, but the Clerk
will only issue Letters if the judge has entered an order.
Do you need to get certified copies of documents?
In any serious conflict over authority (with, say, the police
department if the child’s parent is demanding custody or visitation)
it will probably be necessary to have a certified copy of the Letters of
Guardianship. Most school districts, doctors’ offices and hospitals
will accept copies that have not been certified. It is unlikely that you
will need to order more than one certified copy; the cost of certified
copies (depending on whether the document is a single page) is usually
$18.50 and the cost of a single-page uncertified copy is $.50.
Do I need a lawyer?
Probably not. Most minor guardianships are secured without a lawyer’s
involvement. Forms for initiating guardianship over a minor are
available at the Arizona Supreme
Court's website.
If the circumstances are unusual, there is likely to be a contest from
parents or from other individuals who wish to be guardian, or you are
overwhelmed by the complexity of legal proceedings, you may want to at
least consult a lawyer and possibly retain one to handle the
guardianship for you. You will almost certainly still be required to
make at least one court appearance.
Can the guardian live outside the state? Can he or she take the
child to live in another state?
Yes to both. If the child is to become a resident of the other state
it may make sense to initiate a local guardianship proceeding in that
state; you should consult with a competent attorney in the new state to
determine whether and under what circumstances the new state will
continue to honor an Arizona guardianship.
Where can I get more information and help?
In Pima County (Tucson) and Southern Arizona, the Casey Family KARE
Center provides assistance to family caregivers. The KARE Center assists
with guardianship, adoption, benefits programs, finding care and support
resources and counseling family caregivers. The KARE Center can be
reached at 323-4476, or at 4710 E. 29th Street, Building 7, Tucson,
Arizona 85711.
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