Parental Power of Attorney Arizona by vhz17829

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									                                              Arizona1
                                       Last Edited: August 2005

Summary and Analysis

All children involved in child protection proceedings have the right to appointed counsel in Arizona.
Courts are permitted to appoint both an attorney and a GAL, but it is much more common for the
attorney to act both as an attorney and a GAL. Though attorneys for children are required to ask
for the appointment of a separate guardian ad litem when there is a conflict between the child’s
wishes and best interests (Ariz. St. Bar Comm. R. of Prof. Conduct, Op. No. 86-13), this process is
not often utilized and the role between the advocate for a child’s wishes and a child’s best interests is
usually blended.

Courts may also appoint a court-appointed special advocate (CASA). The CASA acts as an assistant
to and advocate for the child. He or she assures that all appropriate services are made available to
the child and also attempts to protect the best interests of the child. (Ariz. Rev. Stat. Ann. § 8-
221(I)). The role of the CASA is not to replace the caseworker or guardian ad litem in dependency
proceedings, but instead to compliment and assist in the provision of needed services. The court
may also ask the CASA to write reports and appear at review hearings. The CASA has the right to be
informed of and to be present and heard in any dependency or termination proceeding. (Ariz. Rev.
Stat. Ann. § 8-522).

Sources of Law

Statutes

Arizona Statutes § 8-2212 (Counsel right of juvenile, parent or guardian; waiver;
appointment; reimbursement; guardian ad litem)
A. In all proceedings involving offenses, dependency or termination of parental rights that are
conducted pursuant to this title and that may result in detention, a juvenile has the right to be
represented by counsel.

B. If a juvenile, parent or guardian is found to be indigent and entitled to counsel, the juvenile court
shall appoint an attorney to represent the person or persons unless counsel for the juvenile is waived
by both the juvenile and the parent or guardian.

C. Before any court appearance which may result in institutionalization or mental health
hospitalization of a juvenile, the court shall appoint counsel for the juvenile if counsel has not been
retained by or for the juvenile, unless counsel is waived by both the juvenile and a parent or guardian
with whom the juvenile resides or resided prior to the filing of a petition. The juvenile, parent or
guardian may withdraw the waiver of counsel at any time.

D. Waiver of counsel pursuant to this section is subject to the provisions of rule 6, subsection (c) of
the Arizona rules of procedure for the juvenile court.

E. If a juvenile is entitled to counsel and there appears to be a conflict of interest between a juvenile
and the juvenile's parent or guardian including a conflict of interest arising from payment of the fee
for appointed counsel under subsection G of this section, the juvenile court may appoint an attorney
for the juvenile in addition to the attorney appointed for the parent or guardian or employed by the
parent or guardian.

F. The county board of supervisors may fix a reasonable sum to be paid by the county for the
services of an appointed attorney.

G. If the court finds that the juvenile or the parent or guardian of a juvenile has sufficient financial
resources to reimburse, at least in part, the costs of the services of an attorney appointed pursuant to
this section, the court shall order the juvenile or the parent or guardian to pay to the appointed
attorney or the county, through the clerk of the court, an amount that the parent or guardian is able
to pay without incurring substantial hardship to the family. Failure to obey an order under this
subsection is not grounds for contempt or grounds for withdrawal by the appointed attorney. An
order under this section may be enforced in the manner of a civil judgment.
...
I. In all juvenile court proceedings in which the dependency petition includes an allegation that the
juvenile is abused or neglected, the court shall appoint a guardian ad litem to protect the juvenile's
best interests. This guardian may be an attorney or a court appointed special advocate.

Arizona Statutes § 8-5223 (Dependency actions; special advocate; appointment; duties;
immunity)
A. The presiding judge of the juvenile court in each county may appoint an adult as a special
advocate to be the guardian ad litem for a child who is the subject of a dependency action. The court
shall make this appointment at the earliest possible stage in the proceedings. A child, through the
child's guardian ad litem or attorney, has the right to be informed of, to be present at and to be
heard in any proceeding involving dependency or termination of parental rights.

B. The supreme court shall certify special advocates pursuant to rules adopted by the court. Court
rules for certification shall include compliance with qualification standards prescribed by the court.

C. The appointment of the special advocate continues until the court relieves the advocate of the
advocate's responsibilities or until the court dismisses the action before it.

D. A special advocate serves without compensation but is entitled to reimbursement of expenses
pursuant to guidelines prescribed by the supreme court by rule.

E. A special advocate shall:

1. Meet with the child.

2. Advocate for the child's safety as the first priority.

3. Gather and provide independent, factual information to aid the court in making its decision
regarding what is in the child's best interest and in determining if reasonable efforts have been made
to prevent removal of the child from the child's home or to reunite the child with the child's family.

4. Provide advocacy to ensure that appropriate case planning and services are provided for the child.
5. Perform other duties prescribed by the supreme court by rule.

F. A special advocate shall have access to all documents and information regarding the child and the
child's family without obtaining prior approval of the child, the child's family or the court. All
records and information the special advocate acquires, reviews or produces may only be disclosed as
provided for in section 41-1959.

G. The special advocate shall receive notice of all hearings, staffings, investigations and other
matters concerning the child. The special advocate shall have a right to participate in the formulation
of any agreement, stipulation or case plan entered into regarding the child.

H. A special advocate is immune from civil or criminal liability for the advocate's acts or omissions
in connection with the authorized responsibilities the special advocate performs in good faith.

Arizona Statutes § 8-5354 (Notice of initial hearing; waiver; guardian ad litem)
A. After the petition has been filed, the clerk of the superior court shall set a time and place for the
initial hearing. Notice of the initial hearing and a copy of the petition shall be given to the parents of
the child, the guardian of the person of the child, the person having legal custody of the child, any
individual standing in loco parentis to the child, the tribe of any Indian child as defined by the
federal Indian child welfare act of 1978 (25 United States Code § 1903) and the guardian ad litem of
any party as provided for service of process in civil actions.
...
F. On the motion of any party or on its own motion, the court shall appoint a guardian ad litem if it
determines that there are reasonable grounds to believe that a party to the proceeding is mentally
incompetent or is otherwise in need of a guardian ad litem.

G. The county attorney, on the request of the court or a governmental agency or on the county
attorney's own motion, may intervene in any proceedings under this article to represent the interest
of the child.

Cases

In re the Appeal in Pima County Juvenile Severance Action, No. S-1134325
Holding that separate counsel or guardians ad litem were not required for children in light of
their common interests.

In re the Appeal in Yavapai County Juvenile Action No. J-85456
Holding that juvenile court erred in failing to appoint independent counsel for the children involved
in the proceeding.

Regulations

Arizona Rules of Procedure for the Juvenile Court, Part III. Dependency, Guardianship and
Termination of Parental Rights, Rule 387 (Assignment, Appointment of Counsel)
A. Assignment of Counsel. Counsel shall be assigned to represent those persons entitled to counsel
as provided by law and the Indian Child Welfare Act, from the filing of a dependency petition
through the preliminary protective hearing until the court formally appoints counsel or otherwise
relieves assigned counsel. Counsel is required to meet with the client prior to the preliminary
protective hearing. Assigned counsel is not counsel of record for purposes of accepting service of
process for a parent, guardian or Indian custodian who does not appear for the preliminary
protective hearing.

B. Appointment of Counsel. The court shall order the appointment of counsel for those persons
entitled to counsel and determined to be indigent, as provided by law. In determining whether a
person is indigent, the court shall:

1. Order the person to provide proof of financial resources by filing a financial questionnaire
provided by the court. The court may question the person under oath. If the court determines the
person is not indigent the court may order the person to pay a reasonable portion of the cost of
counsel or deny the request for appointment of counsel.

C. Manner of Appointment. If the court enters an order appointing or denying counsel, a copy of
the order or minute entry shall be provided to the parties.

Arizona Rules of Procedure for the Juvenile Court, Part III. Dependency, Guardianship and
Termination of Parental Rights, Rule 408 (Appointment of Guardian Ad Litem)
A. The court may appoint a guardian ad litem to protect the interest of the child. The guardian ad
litem may be an attorney, volunteer special advocate or other qualified person.

Arizona Rules of Procedure for the Juvenile Court, Part IV. Adoption, Rule 709(Appointment
of Guardian Ad Litem)
A. The court may appoint a guardian ad litem to protect the interest of the child. The guardian ad
litem may be an attorney, volunteer special advocate or other qualified person.

Ethical Provisions
Arizona Rules of Professional Conduct, Rule 1.1410 (Client with Diminished Capacity)
(a) When a client's capacity to make adequately considered decisions in connection with the
representation is diminished, whether because of minority, mental impairment or for some other
reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship
with the client.

(b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of
substantial physical, financial or other harm unless action is taken and cannot adequately act in the
client's own interest, the lawyer may take reasonably necessary protective action, including
consulting with individuals or entities that have the ability to take action to protect the client and, in
appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian.

(c) Information relating to the representation of a client with diminished capacity is protected by ER
1.6. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized
under ER 1.6(a) to reveal information about the client, but only to the extent reasonably necessary
to protect the client's interests.

Amended June 9, 2003, effective Dec. 1, 2003.

COMMENT on 2003 Amendment
[1] The normal client-lawyer relationship is based on the assumption that the client, when properly
advised and assisted, is capable of making decisions about important matters. When the client is a
minor or suffers from a diminished mental capacity, however, maintaining the ordinary client-lawyer
relationship may not be possible in all respects. In particular, a severely incapacitated person may
have no power to make legally binding decisions. Nevertheless, a client with diminished capacity
often has the ability to understand, deliberate upon, and reach conclusions about matters affecting
the client's own well-being. For example, children as young as five or six years of age, and certainly
those of ten or twelve, are regarded as having opinions that are entitled to weight in legal
proceedings concerning their custody. So also, it is recognized that some persons of advanced age
can be quite capable of handling routine financial matters while needing special legal protection
concerning major transactions.
[2] The fact that a client suffers a disability does not diminish the lawyer's obligation to treat the
client with attention and respect. Even if the person has a legal representative, the lawyer should as
far as possible accord the represented person the status of client, particularly in maintaining
communication.
[3] The client may wish to have family members or other persons participate in discussions with the
lawyer. Nevertheless, the lawyer must keep the client's interests foremost and, except for protective
action authorized under paragraph (b), must look to the client, and not family members, to make
decisions on the client's behalf.
[4] If a legal representative has already been appointed for the client, the lawyer should ordinarily
look to the representative for decisions on behalf of the client. In matters involving a minor,
whether the lawyer should look to the parents as natural guardians may depend on the type of
proceeding or matter in which the lawyer is representing the minor. If the lawyer represents the
guardian as distinct from the ward, and is aware that the guardian is acting adversely to the ward's
interest, the lawyer may have an obligation to prevent or rectify the guardian's misconduct. See ER
1.2(d).
Taking Protective Action
[5] If a lawyer reasonably believes that a client is at risk of substantial physical, financial or other
harm unless action is taken, and that a normal client-lawyer relationship cannot be maintained as
provided in paragraph (a) because the client lacks sufficient capacity to communicate or to make
adequately considered decisions in connection with the representation, then paragraph (b) permits
the lawyer to take protective measures deemed necessary. Such measures could include: consulting
with family members, using a reconsideration period to permit clarification or improvement of
circumstances, using voluntary surrogate decisionmaking tools such as durable powers of attorney or
consulting with support groups, professional services, adult-protective agencies or other individuals
or entities that have the ability to protect the client. In taking any protective action, the lawyer
should be guided by such factors as the wishes and values of the client to the extent known, the
client's best interests and the goals of intruding into the client's decisionmaking autonomy to the
least extent feasible, maximizing client capacities and respecting the client's family and social
connections.
[6] In determining the extent of the client's diminished capacity, the lawyer should consider and
balance such factors as; the client's ability to articulate reasoning leading to a decision, variability of
state of mind and ability to appreciate consequences of a decision; the substantive fairness of a
decision; and the consistency of a decision with the known long-term commitments and values of
the client. In appropriate circumstances, the lawyer may seek guidance from an appropriate
diagnostician.
[7] If a legal representative has not been appointed, the lawyer should consider whether appointment
of a guardian ad litem, conservator or guardian is necessary to protect the client's interests. Thus, if a
client with diminished capacity has substantial property that should be sold for the client's benefit,
effective completion of the transaction may require appointment of a legal representative. In
addition, rules of procedure in litigation sometimes provide that minors or persons with diminished
capacity must be represented by a guardian or next friend if they do not have a general guardian. In
many circumstances, however, appointment of a legal representative may be more expensive or
traumatic for the client than circumstances in fact require. Evaluation of such circumstances is a
matter entrusted to the professional judgment of the lawyer. In considering alternatives, however,
the lawyer should be aware of any law that requires the lawyer to advocate the least restrictive action
on behalf of the client.
Disclosure of the Client's Condition
[8] Disclosure of the client's diminished capacity could adversely affect the client's interest. For
example, raising the question of diminished capacity could, in some circumstances, lead to
proceedings for involuntary commitment. Information relating to the representation is protected by
ER 1.6. Therefore, unless authorized to do so the lawyer may not disclose such information. The
lawyer may disclose information otherwise protected by ER 1.6 to the extent such disclosure may be
required by law. When taking protective action pursuant to paragraph (b), the lawyer is impliedly
authorized to make the necessary disclosures, even when the client directs the lawyer to the contrary.
Nevertheless, given the risks of disclosure, paragraph (c) limits what the lawyer may disclose in
consulting with other individuals or entities or seeking the appointment of a legal representative. At
the very least, the lawyer should determine whether it is likely that the person or entity consulted
with will act adversely to the client's interests before discussing matters related to the client. The
lawyer's position in such cases is an unavoidably difficult one.
Emergency Legal Assistance
[9] In an emergency where the health, safety or financial interest of a person with seriously
diminished capacity is threatened with imminent and irreparable harm, a lawyer may take legal action
on behalf of such a person even though the person is unable to establish a client-lawyer relationship
or to make or express considered judgments about the matter, when the person or another acting in
good faith on that person's behalf has consulted with the lawyer. Even in such an emergency,
however, the lawyer should not act unless the lawyer reasonably believes that the person has no
other lawyer, agent or other representative available. The lawyer should take legal action on behalf of
the person only to the extent reasonably necessary to maintain the status quo or otherwise avoid
imminent and irreparable harm. A lawyer who undertakes to represent a person in such an exigent
situation has the same duties under these Rules as the lawyer would with respect to a client.
[10] A lawyer who acts on behalf of a person with seriously diminished capacity in an emergency
should keep the confidences of the person as if dealing with a client, disclosing them only to the
extent necessary to accomplish the intended protective action. The lawyer should disclose to any
tribunal involved and to any other counsel involved the nature of the lawyer's relationship with the
person. The lawyer should take steps to regularize the relationship or implement other protective
solutions as soon as possible.

Arizona State Bar Committee on Rules of Professional Conduct, Op. No. 86-13 (1986)11
Where there is a conflict between the child’s wishes and best interests, the attorney must represent
the child’s wishes and request appointment of a separate guardian ad litem.

Local Contact Information

Ann Haralambie
3499 North Campbell Road, Suite 901
Tucson, Arizona 85719
(520)-327-6287
ann.haralambie@azbar.org

Paul Bennett
University of Arizona School of Law
Clinical Professor of Law & Director of the Child Advocacy Clinic
bennett@law.arizona.edu




Endnotes
1 This page is also available as a .pdf Document, and Word Document.
2 ARIZ. REV. STAT. ANN. § 8-221 (2005), available here, and also as .pdf Document, and also as Word Document.
3 ARIZ. REV. STAT. ANN. § 8-522 (2005), available here, and also as .pdf Document, and also as Word Document.
4 ARIZ. REV. STAT. ANN. § 8-535 (2005), available here, and also as .pdf Document, and also as Word Document.
5 In re the Appeal in Pima County Juvenile Severance Action, No. S-113432, 872 P.2d 1240 (Ariz. Ct. App. 1993),

available here, and also as .pdf Document, and also as Word Document.
6 In re the Appeal in Yavapai County Juvenile Action No. J-8545, 680 P.2d 146 (Ariz. 1984), available here, and also as .pdf

Document, and also as Word Document.
7 ARIZ. JUV. CT. R. OF PROC., R. 38 (2005), available here, and also as .pdf Document, and also as Word Document.
8 ARIZ. JUV. CT. R. OF PROC., R. 40 (2005), available here, and also as .pdf Document, and also as Word Document.
9 ARIZ. JUV. CT. R. OF PROC., R. 70 (2005), available here, and also as .pdf Document, and also as Word Document.
10 ARIZ. R. OF PROF. CONDUCT, R 1.14 (2005), available here, and also as .pdf Document, and also as Word Document.
11 Ariz. St. Bar Comm. on R. of Prof. Conduct, Op. No. 86-13 (1986).

								
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