Experienced Arizona Ancillary Probate and Trust Attorney Arizona Ancillary Probate Lawyer Matthew L. Howell Attorney at Law
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Frequently Asked Questions And Answers for:

Guardianship (& alternatives) in general

Guardianship Alternatives

  1. WHAT IS THE PROBLEM? -- You or a family member, friend, or a client is a non-Arizona resident who is an unmarried minor (under age 18) or a legally incapacitated adult who therefore cannot make personal welfare decisions for him or herself and will be residing or staying in Arizona. What is the best way to provide guardianship decision making?

  2. WHAT IS GUARDIANSHIP? -- In Arizona the court appoints a person(s) to make personal welfare decisions for (a) an unmarried minor (under age 18) where all parental rights of custody have been terminated, or suspended by circumstances (namely, death, incapacity, confinement, detention, disappearance), or (b) an adult incapacitated by physical or mental incapacity, chronic use of drugs or alcohol, or confinement, detention by a foreign power, or disappearance and for whom no other effective personal management is available.

  3. WHAT IS ANCILLARY VS. DOMICILIARY GUARDIANSHIP? -- Action in Arizona by a guardian is necessary only when the ward is a resident of or will be physically present in Arizona. Where a non-Arizona resident ward already has a guardian appointed in the state, province or country of his residence, called a domiciliary guardian, that domiciliary guardian, absent a legal dispute, has jurisdiction to act locally without appointment of an Arizona ancillary guardian.

  4. WHAT GUARDIANSHIP AVOIDING PROCEDURES ARE AVAILABLE IN ARIZONA FOR NON-ARIZONA RESIDENTS? --

    (a) AVOIDING MINOR GUARDIANSHIP--For the non-Arizona resident minor ward who will be temporarily physically present in Arizona, Arizona guardianship is not necessary when the minor is (i) married, (ii) has any competent parent or domiciliary guardian, (iii) has a parent or guardian who has delegated authority to an [Arizona] attorney-in-fact to manage the custody, care or property for the minor, (iv) when an active duty military parent has delegated authority to an [Arizona] attorney-in-fact to control the minor, and (v) if an Arizona conservator has or soon will be appointed.

    (b) AVOIDING ADULT GUARDIANSHIP--For the non-Arizona resident adult ward who will be temporarily physically present in Arizona, Arizona guardianship is not necessary when the adult: (i) has a parent or domiciliary guardian who has delegated authority to an [Arizona] attorney-in-fact to manage the custody or care of the adult, (ii) when the ward delegated personal management authority to another under a durable power of attorney.

  5. WHEN WILL ARIZONA GUARDIANSHIP APPOINTMENT BE NECESSARY FOR A NON-RESIDENT MINOR OR ADULT? -- An Arizona guardianship appointment is necessary only when the minor or legally incapacitated adult moves to and becomes a resident of Arizona, and where the guardianship avoiding alternatives discussed above do not apply. If a domiciliary guardian is appointed in the minor or adult's (former) residence, then an Arizona guardian will most likely have to be appointed when Arizona residence is established.

  6. HOW IS AN ARIZONA GUARDIAN APPOINTED? -- In Arizona guardianship procedure depends on whether the guardian can be appointed by accepting nomination in the last will and testament of the ward's parent or spouse--called testamentary appointment, or whether court appointment is necessary:

    (a) TESTAMENTARY APPOINTMENT--The parent of either an unmarried minor, or unmarried, legally incapacitated adult, or spouse of a legally incapacitated adult, may nominate a guardian for that minor or adult in his or her last will and testament; the nominee's appointment becomes effective on court filing of the deceased parent's or spouse's will and his or her formal acceptance and by also providing notice to the minor or adult ward and either that ward's custodian or his nearest adult relative, and subject to the adult's or age-14 or older minor's right to object; the will of the deceased parent or spouse admitted to probate in that decedent's (former) domicile is automatically accepted in Arizona for testamentary appointment.

    (b) COURT APPOINTMENT--Arizona guardianship appointment is made only upon court petition, and for adults requires prior appointment of a court investigator and physician to report on the adult's incapacity, as well as appointment of an attorney to represent the adult; appointment for an adult or minor guardian requires notice to interested parties and a court hearing, an order of appointment, and formal acceptance by the guardian; there is a statutory priority for appointment, however, any guardian or fiduciary appointed in the ward's (former) domicile automatically has first priority for court appointment in Arizona.

  7. AFTER APPOINTMENT OF A GUARDIAN WHAT ELSE IS REQUIRED? -- An annual report of the Guardian must be filed with the court, and occasional reviews may be made by a court investigator.

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