Arizona Laws 14-5303. Procedure for court appointment of a guardian of an alleged incapacitated person
A. The alleged incapacitated person or any person interested in that person’s affairs or welfare may petition for the appointment of a guardian or for any other appropriate protective order.
Terms Used In Arizona Laws 14-5303
- Action: includes any matter or proceeding in a court, civil or criminal. See Arizona Laws 1-215
- Conservator: means a person who is appointed by a court to manage the estate of a protected person. See Arizona Laws 14-1201
- Court: means the superior court. See Arizona Laws 14-1201
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Guardian: A person legally empowered and charged with the duty of taking care of and managing the property of another person who because of age, intellect, or health, is incapable of managing his (her) own affairs.
- Guardian: means a person who has qualified as a guardian of a minor or incapacitated person pursuant to testamentary or court appointment but excludes a person who is merely a guardian ad litem. See Arizona Laws 14-1201
- Incapacitated: means lacking the ability to manage property and business affairs effectively by reason of mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, confinement, detention by a foreign power, disappearance, minority or other disabling cause. See Arizona Laws 14-9101
- Incapacitated person: means 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 sufficient understanding or capacity to make or communicate responsible decisions concerning his person. See Arizona Laws 14-5101
- including: means not limited to and is not a term of exclusion. See Arizona Laws 1-215
- Investigator: means a person who is appointed by the court under section 14-5308. See Arizona Laws 14-5101
- Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
- Parent: includes any person entitled to take, or who would be entitled to take if the child died without a will, as a parent under this title by intestate succession from the child whose relationship is in question and excludes any person who is only a stepparent, foster parent or grandparent. See Arizona Laws 14-1201
- Person: means an individual or an organization. See Arizona Laws 14-1201
- Petition: means a written request to the court for an order after notice. See Arizona Laws 14-1201
- Physician: means a person licensed pursuant to Title 32, Chapter 13 or 17. See Arizona Laws 14-5101
- Power of attorney: A written instrument which authorizes one person to act as another's agent or attorney. The power of attorney may be for a definite, specific act, or it may be general in nature. The terms of the written power of attorney may specify when it will expire. If not, the power of attorney usually expires when the person granting it dies. Source: OCC
- Proceeding: includes action at law and suit in equity. See Arizona Laws 14-1201
- Property: includes both real and personal property. See Arizona Laws 1-215
- Psychologist: means a person licensed pursuant to Title 32, Chapter 19. See Arizona Laws 14-5101
- State: means a state, territory or possession of the United States, the District of Columbia or the Commonwealth of Puerto Rico. See Arizona Laws 14-9101
- Trial: A hearing that takes place when the defendant pleads "not guilty" and witnesses are required to come to court to give evidence.
- Trust: includes an express trust, private or charitable, with any additions, wherever and however created. See Arizona Laws 14-1201
- Writing: includes printing. See Arizona Laws 1-215
B. The petition shall contain a statement that the authority granted to the guardian may include the authority to withhold or withdraw life sustaining treatment, including artificial food and fluid, and shall state, at a minimum and to the extent known, all of the following:
1. The interest of the petitioner.
2. The name, age, residence and address of the alleged incapacitated person.
3. The name, address and priority for appointment of the person whose appointment is sought.
4. The name and address of the conservator, if any, of the alleged incapacitated person.
5. The name and address of the nearest relative of the alleged incapacitated person known to the petitioner.
6. A general statement of the property of the alleged incapacitated person, with an estimate of its value and including any compensation, insurance, pension or allowance to which the person is entitled.
7. The reason why appointment of a guardian or any other protective order is necessary.
8. The type of guardianship requested. If a general guardianship is requested, the petition must state that other alternatives have been explored and why a limited guardianship is not appropriate. If a limited guardianship is requested, the petition also must state what specific powers are requested.
9. If a legal decision-making, parenting time or visitation order was previously entered regarding an alleged incapacitated person in a marriage dissolution, legal separation or paternity action in this state or another jurisdiction and the petitioner or proposed guardian is a parent of the alleged incapacitated person or a nonparent who has been awarded legal decision-making as to the alleged incapacitated person, the court and case number for that action or proceeding and include a copy of the most recent court order regarding legal decision-making, parenting time and visitation.
10. If the appointment of a guardian is necessary due solely to the physical incapacity of the alleged incapacitated person.
11. Whether the alleged incapacitated person is the principal under a health care power of attorney, and, if so, a copy of that health care power of attorney must be attached to the petition.
12. Whether the alleged incapacitated person is the principal under a durable power of attorney in which the alleged incapacitated person has nominated someone to serve as guardian, and, if so, a copy of that durable power of attorney must be attached to the petition.
13. Whether the alleged incapacitated person has a present vested interest in a trust, and, if so, the name of the trust and the current trustee of the trust.
C. On the filing of a petition, the court shall set a hearing date on the issues of incapacity. Unless the alleged incapacitated person is represented by independent counsel, the court shall appoint an attorney to represent that person in the proceeding. The alleged incapacitated person shall be interviewed by an investigator appointed by the court and shall be examined by a physician, psychologist or registered nurse appointed by the court. If the alleged incapacitated person has an established relationship with a physician, psychologist or registered nurse who is determined by the court to be qualified to evaluate the capacity of the alleged incapacitated person, the court may appoint the alleged incapacitated person’s physician, psychologist or registered nurse pursuant to this subsection. The investigator and the person conducting the examination shall submit their reports in writing to the court. In addition to information required under subsection D of this section, the court may direct that either report include other information the court deems appropriate. The investigator also shall interview the person seeking appointment as guardian, visit the present place of abode of the alleged incapacitated person and the place where it is proposed that the person will be detained or reside if the requested appointment is made and submit a report in writing to the court. The alleged incapacitated person is entitled to be present at the hearing and to see or hear all evidence bearing on that person’s condition. The alleged incapacitated person is entitled to be represented by counsel, to present evidence, to cross-examine witnesses, including the court-appointed examiner and investigator, and to trial by jury. The court may determine the issue at a closed hearing if the alleged incapacitated person or that person’s counsel so requests.
D. At the initial hearing on the petition, the court shall read into the record the notice of right to trial by jury as stated in the notice of hearing.
E. A report filed pursuant to this section by a physician, psychologist or registered nurse acting within that person’s scope of practice shall include the following information:
1. A specific description of the physical, psychiatric or psychological diagnosis of the person.
2. A comprehensive assessment listing any functional impairments of the alleged incapacitated person and an explanation of how and to what extent these functional impairments may prevent that person from receiving or evaluating information in making decisions or in communicating informed decisions regarding that person.
3. An analysis of the tasks of daily living the alleged incapacitated person is capable of performing without direction or with minimal direction.
4. A list of all medications the alleged incapacitated person is receiving, the dosage of the medications and a description of the effects each medication has on the person’s behavior to the best of the declarant’s knowledge.
5. A prognosis for improvement in the alleged incapacitated person’s condition and a recommendation for the most appropriate rehabilitation plan or care plan.
6. Other information the physician, psychologist or registered nurse deems appropriate.