Guardianship Service Commission
The Arc of Arizona formed the Guardianship Service Commission in 1980,
seeing the need to help the most vulnerable individuals with disabilities. The
GSC provides ongoing guardianship to persons that have developmental
disabilities with no family members available. This includes handling
financial affairs, individual service program plans, individual education
plans, medication reviews, managing trusts, treatment team member,
personal assistance and general advocacy. Beyond providing guardianship,
The Arc assists in distributing information to the public about guardianship
The Purpose of the Guardianship Service Commission is to assist families
who have a family member with a developmental disability perform their
responsibilities as guardian, conservator and advocate.
It is the mission of the Guardianship Service Commission to protect the
human and legal rights of people with developmental disabilities through a
systematic approach to advocacy and protective services.
The goals of The Guardianship Service Commission are:
• To assist parents who have children with developmental disabilities in
appropriately performing their responsibilities as guardian,
conservator and guardian.
• To provide direct guardianship, advocacy and other related services to
people with developmental disabilities.
• To improve the systems of guardianship, Conservatorship and
advocacy services to people with developmental disabilities.
The following information has been developed to provide a statewide
resource of guardianship information and options to guardianship to meet
the individual needs of each person in Arizona with a developmental
disability. It is not intended to substitute as legal advice.
Guardianship is a legal process designed to protect vulnerable persons from
abuse, neglect and exploitation. This includes self-induced neglect, abuse
and exploitation. The guardian is the court appointed person responsible for
the care, custody and control of the ward. Guardianships are created for a
variety of reasons. A guardian can be a person, persons or a corporation.
The Incapacitated Person or Ward
A person is not legally found incapacitated until the court has declared that
person incapacitated. Before the court makes a determination, a person for
whom a guardianship application has been filed is called the "alleged
incapacitated person" or the "proposed ward".
Arizona Revised Statute 14-5101(1) defines a ward as a person for whom a
guardian has been appointed. A "minor ward" is a minor for whom a
guardian has been appointed solely because of being under the age of 18
Arizona Revised Statute 14-5101(1) defines an incapacitated person as any
person who is impaired by reason of mental illness, mental deficiency,
mental disorder, physical illness or disability, chronic use of drugs, chronic
intoxication or other cause, (except minority) to the extent that he lacks the
sufficient understanding or capacity to communicate responsibility decisions
concerning his person.
No matter what the cause, the decision to seek guardianship is often painful
and difficult for all parties involved. Guardianship removes certain rights
and privileges from an incapacitated person. When determining "incapacity"
you will want to consider if the person is able to provide:
• Shelter for him/herself
• Care for the individuals' own physical health
• Manage the individual's own financial affairs as demonstrated by a
• Reoccurrence of potential risk or harm to the person or their estate
• Prevent or protect self from risk or harm.
Who can be a Guardian
When determining who to appoint as guardian, the court will consider the
alleged incapacitated persons best interest. The court will give consideration
to the proposed ward's preference and may appoint another person. Below, is
the priority list utilized by the courts. Certain persons on the list may
nominate another person to fill the position or the court may ignore the
priority list if it determines that it is in the best interest of the proposed ward
• A person already named in any jurisdiction in which the incapacitated
• The proposed ward's nominee if in the opinion of the court, he/she has
sufficient capacity to make an intelligent decision.
• A person named in the proposed ward's most recent durable power of
• The proposed ward's spouse
• An adult child of the proposed ward
• The proposed ward's parent or parents, or person named in a deceased
• A relative with whom the ward has resided for six months or longer
• A caretaker nominee
• A private fiduciary, professional guardian or Arizona Veterans
Duties and Responsibilities of a Guardian
A guardian has the same powers, rights and duties of a ward as a parent of a
minor child, except that a guardian is not liable to third persons for acts of
the ward solely by reason of the guardianship. A guardian's duties include
providing least restrictive care, control and protection of the ward.
The guardian shall arrange for the ward's training, education, food, clothing,
medical care, religious activities and shelter. You may handle small amounts
of money or property belonging to your ward.
The guardians shall consent to medical, psychiatric, and general surgical
treatment. Prior court approval is suggested when obtaining an abortion,
elective birth control, or hysterectomy.
A guardian is responsible for monitoring the ward's care, arranging for
appropriate social services and medical care, maintaining contact with
doctors, nurses, social workers and other care providers.
The guardian shall intervene on behalf of the ward if care is not appropriate,
neglect or abuse is suspected.
A guardian is required to submit an annual report to the court on the
condition of the ward.
Procedure for Court Appointment of Guardianship
The proposed ward or any person may petition the court for appointment of
Upon filing the petition, the court will set a hearing date, generally, 45 days
from the date of filing. If the proposed ward is not represented by counsel,
the court will appoint an attorney to represent the proposed ward.
Prior to the hearing date, the proposed ward and petitioner shall be
interviewed by the investigator appointed by the court. The investigator shall
also visit the proposed ward's home. A written report shall be submitted to
The proposed ward shall be examined by a physician, psychologist or
registered nurse appointed by the court. (The proposed ward's current
physician may examine the ward). Prior to the hearing date, the physician
shall submit a written report to the court.
At the hearing, the proposed ward is encouraged to be present at the hearing
to see and hear all evidence bearing on that person's condition. The proposed
ward is entitled to representation by an attorney who may cross examine
witnesses or request a jury trial if necessary. The court may also determine
the issue in a closed hearing at the attorney's request.
The judge will review the case and determine appointment of guardianship
at the time of the hearing.
Termination of Guardianship
Termination of guardianship can occur in a variety of ways:
• Death of the guardian or ward.
• When the court orders closure and discharge of the guardian's duties.
• When the court determines that the disability of the protected person
• The court has approved the removal or resignation of the guardian.
The court has the power to appoint broad or limited guardianship. These
limitations may depend upon the physical or mental limitations of the
incapacitated person. The guardianship may be limited in time (30 days to 6
months), scope of power or both. The individual must be evaluated to
determine in what area assistance is needed. The guardian’s authority is
limited to the areas specific in the Letters of Guardianship.
A co-guardian is when two or more individuals share the responsibilities of
guardianship for the incapacitated individual. When co-guardianship is
established, each guardian appointed to the incapacitated person must adhere
to the duties and responsibilities of a guardian.
Families often believe two or more individuals must be appointed as
guardian of the incapacitated person to ensure continuity of guardianship.
An alternative to group or co-guardianship may be Testamentary
Guardianship. To obtain Testamentary Guardianship, the parent or spouse of
an incapacitated person must write in their will the appointment of a
guardian of an incapacitated person. The appointment becomes effective
after having given seven days prior written notice of intent to the
incapacitated person, the person managing the incapacitated persons' care
and the nearest adult relatives. The guardian files acceptance of appointment
in the court in which the will is informally or formally probated.
A nonprofit corporation having corporate powers to act as guardian of an
incapacitated person can be appointed as guardian. In Arizona, a corporation
and its employees must be registered and certified with a current
Certification from the Arizona Supreme Court to act as guardian.
Mental Health or Title 36 Guardianship
Arizona law separates general guardianship from mental health
guardianship. A guardian must request authorization from the court to have
the power to place the ward in a mental health treatment facility.
Power of Attorney
Powers of Attorney are not intended to substitute for guardianship. It is
strongly recommended an attorney be consulted before drawing upon one of
Most powers of attorney cannot exceed 6 months and must be notarized.
Power of attorney is another alternative to imposing guardianship on
someone who needs assistance with specific issues such as medical care.
You do not have to go to court to implement a power of attorney. You
simply need to write it and have your signature's notarized. Many times a
health care power of attorney along with living will provisions will alleviate
the need of having a guardian appointed through the courts. A financial
power of attorney may alleviate the need for a court-appointed
A surrogate parent is appointed by the court to represent a child who is
receiving Special Education. Surrogate parents are usually appointed when
the child lives in a Foster Care home or when the child's natural parents are
also disabled and unable to represent the child at the Individual Education
Plan (IEP) meeting or when for other reasons the natural parent is unwilling
or unable to represent the child at the IEP meeting.
The Public Fiduciary is a state-mandated, professional guardianship program
funded by county government to provide guardianship to incapacitated
individuals when no other person or corporation is able or willing to act for
The representative payee is an individual who only manages the person's
Social Security benefits. The representative payee is only responsible for
how the Social Security benefits are spent.
An advocate is a person who is available to speak on behalf of their client.
The advocate may make minor decisions for their client when they are
unable to make those decisions themselves. The advocate may not legally
impose their will upon the person they represent. An advocate is generally
more appropriate for people with minor capacity limitations.
A conservator is a person or corporation appointed by the court to manage
the income and property of someone who is not capable of handling his or
her own financial affairs. The person who has a conservator is called a
protected person. The conservator does not make decisions regarding the
personal care of an individual like a guardian does.
An individual may not necessarily be determined "incapacitated" to be
adjudicated and found in need of financial protection. If the person is unable
to manage his property and affairs effectively due to physical or mental
limitations,, chronic use of drugs, intoxication, confinement, detention by a
foreign power or disappearance and the person has property that will be
wasted or dissipated unless proper management is provided or that funds are
needed for the support, care and welfare of the person or those entitled to be
supported by him and that protection is necessary or desirable to obtain or
provide funds then Conservatorship may be considered appropriate.
Types and Powers of Conservatorship
The powers of the conservator are specifically set out in the order creating
A General Conservatorship gives the conservator the legal rights to manage
all aspects of the protected person's financial affairs.
A Temporary Conservator may be appointed when needed to provide
interim protection for a person's property. The requirements to obtain
temporary Conservatorship are similar to those for the appointment of a
The court may appoint broad or limited Conservatorship. These limitations
may depend upon the physical or mental limitations of the incapacitated
person. The Conservatorship may be limited by time (30 days to 6 months),
scope of power, or both. The individual must be evaluated to determine in
what area of assistance is needed. The Conservators authority is limited to
the areas specified in the Letters of Conservatorship.
Duties of a Conservator
A conservator has the powers and responsibilities of the protected person's
finances and is held to the standard of care applicable to a trustee and of a
prudent person dealing with property of another. Within ninety days of
appointment, the conservator must file and inventory of the estate of the
protected person with the court. The conservator has the power to invest
funds of the estate and to distribute sums reasonably necessary for the
support, care, education or benefit of the protected person, who's legally
dependent on the protected person or those members of the protected
person's household who are unable to support themselves. The conservator
must pay all reasonable expenses incurred against the estate and protected
person from the protected person's estate.
Each year the conservator reports all income, principle received and all
disbursement made on behalf of the protected person unless otherwise
specified in the Order of Conservatorship. Each county has their own local
rules regarding the accounting standards and forms required. You should
refer to your local county court house for this information.
A Conservatorship terminates:
• Upon the death of the protected person.
• Upon a court determination that the minority or disability of the
protected person has ceased.
• Upon the removal or resignation of the conservator.
• Upon termination, title of the assets passes to the former protected
person or if the protected person is deceased, as provided by the
protected person's will, or by law if there is no will. The conservator
closes the affairs of the estate, including the preparation and court
approval of the final accounting.
Questions and Answers
1. Can a person be their own Guardian?
No. By definition, a person does not need a guardian unless they are
determined incapacitated by the court. If they are incapacitated, then they are
not a competent adult and therefore cannot be their own guardian.
2. Do parents automatically become or continue to be guardians for a child
with a disability when the child turns 18 years old?
No. Even though parents have legal right to act for their child until the child
turns 18, they do not become the guardian or have legal rights to make
decisions for an adult child unless a court appoints the parent as guardian.
No one can be guardian for an adult without going to court.
3. When should I start the paper work to get guardianship of my child?
Local rules and customs of practice vary in Arizona's Superior Probate
courts. Guardianship can be established any time after the child turns 18
years old. If you are concerned that the child may need a guardian
immediately after they turn 18 years, you may want to file guardianship
papers approximately 45 days before their 18th birthday.
4. Does an attorney have to be retained to obtain guardianship or
No. You may complete and file the paperwork yourself without retaining an
attorney. Each county has their own required forms. Your local self service
center at the Superior Court may have the required forms. Some counties
provide the forms online. Check your local county web site.