dreamstime_xxl_52490349Custody Issues for Young Disabled Adult Child

Divorce is never easy, especially when it involves children.  When the divorced couple has a disabled or incapacitated child, it can become even more complicated.  When a child becomes an adult at age 18, his parents no longer have legal decision making authority over him for his education, health care, religious training, and personal care.  If the child is incapacitated, he may need a guardian appointed with legal decision-making authority to ensure his ongoing care and needs are met.  One of the problems that arises at the time one or both of the parents petition for guardianship of their incapacitated child is that the parents may decide to re-litigate the legal decision making issues all over again.  The incapacitated child may then find himself once again caught in the middle of another traumatic divorce battle, this time in probate court.

The State of Arizona passed a law which shall be come effective December 31, 2016 to avoid reopening legal decision making issues already resolved in Family Court, when the parents petition for appointment of a guardian.  If a petition for appointment of a guardian is filed for a child who is either turning age 18 (pursuant to ARS §14-5301.03) or within two years of turning age 18, the court will appoint the person with sole legal decision making authority as sole guardian, or those with joint legal decision making authority as co-guardians, unless the court finds the appointment to be contrary to the child’s best interests (now an adult).  In other words, the Probate Court simply adopts the Family Court’s decision for legal decision making, unless the parties can show why it would not be in the child’s best interest.

guardianship and conservatorshipMaintaining the Ward’s Relationships

One of the issues that commonly arises in guardianships is the Ward’s contact with other individuals.  Sometimes there are individuals who should not have contact with the Ward.  On the other hand, sometimes the guardian is overly strict in determining which individuals are permitted to have contact with the Ward.  Until now, the courts typically allowed the guardian to make the determination of what contact was in the best interests of the Ward.  The Arizona Legislature has decided to codify this issue to provide guidance to the court and parties in guardianship matters.

The new statute, ARS § 14-5316, mandates that guardians should encourage and allow contact between the Ward and other persons with a “significant relationship” with the Ward, as long as the contact is not detrimental to the Ward’s health, safety or welfare.  The guardian should also consider the Ward’s wishes, if the Ward has sufficient mental capacity to make an intelligent choice.

Under the new statute, the Ward or the person seeking contact with the Ward may petition the court to allow the contact.  They would have the burden of proving 1) there is a significant relationship, and 2) contact is in the best interests of the Ward.  The court may consider a number of factors in making this determination, such as the Ward’s physical and mental health, the Ward’s wishes (if he has sufficient capacity to make an intelligent choice), and the person’s history of substance abuse, domestic violence, abuse, or neglect.  The court order can later be modified, including on a temporary basis with or without notice to the affected persons.  This statute is effective December 31, 2016.

Notice to Family of Death/Hospitalization

Another concern that commonly arises among family members in a guardianship is the lack of communication. The Arizona Legislature decided to mandate at least some bare minimum level of communication between the guardian and family members.  Pursuant to the new statute, ARS § 14-5317, guardians are required to notify family members, who are “interested parties” in a guardianship matter, of 1) the hospitalization of more than three days; and 2) the death of the Ward and information about the funeral/burial arrangements of the Ward.  The statute does not dictate the means or the time frame in which notification should be required.  This statute is effective December 31, 2016.

If you’re curious about these new statutes surrounding guardianship law here in the state of Arizona, feel free to get in touch with a guardianship lawyer here at Bivens & Associates.