Upon the filing of a guardianship petition, “unless the alleged incapacitated person is represented by independent counsel, the court shall appoint an attorney to represent that person in the proceeding.” Ariz. Rev. Stat. Ann. § 14-5303(C). “An attorney appointed pursuant to § 14-5303, subsection C remains the attorney of record until the attorney is discharged by the court. The court shall ensure that a ward whose guardian has been granted mental health treatment authority is represented by an attorney at all times the guardian has that authority. Unless the court finds that the ward has insufficient assets to meet the ward’s reasonable and necessary care and living expenses, the ward shall pay the attorney’s reasonable fees.” Ariz. Rev. Stat. Ann. § 14-5312.01(K). “The court may discharge an attorney who was appointed pursuant to § 14-5303, subsection C subsequent to the appointment of a guardian if it clearly appears from specific facts presented by affidavit or verified petition that continued representation of the ward is no longer necessary or desirable.” Factors: “1. The nature and history of ward’s illness. 2. The ward’s history of hospitalization. 3. The ward’s current and anticipated living arrangements. 4. Whether the ward’s inpatient treatment is anticipated to be a one-time hospitalization for the purpose of stabilizing the ward’s condition and further hospitalizations are not likely to be necessary. 5. Whether the ward’s current and anticipated living arrangements are the least restrictive alternatives possible.” Ariz. Rev. Stat. § 14-5312.01(Q). “Before substituting a guardian, accepting the resignation of a guardian, or ordering that a ward’s incapacity has terminated, the court, following the same procedures to safeguard the rights of the ward as apply to a petition for appointment of a guardian, may send an investigator to the” residences of the ward and the guardian." Ariz. Rev. Stat. § 14-5307(E).
Identical to model rule. “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.” Ariz. Sup. Ct. Rule 42, R.P.C. Ethics Rule 1.14. “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.” Id. at Comment 1. “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.” Id. at Comment 2. “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…must look to the client, and not family members, to make decisions on the client’s behalf.” Id. at Comment 3. “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….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. Id. at Comment 4.
In the absence of unusual circumstances, appointment of GAL to represent conservatee after conservator, who had been appointed several years prior, filed his annual account was an abuse of the trial court's discretion. Matter of Ray's Estate 25 Ariz.App. 40 (1975). "The court is given discretion in deciding whether to make the appointment [of GAL], and, if it does, it must 'set out the reasons' for making the appointment. The court in the instant case determined that representation fo the interest of the protected person would be inadequate without the appointment. This is not 'setting out the reasons' as meant by the statute. Specific findings, such as a possible conflict of interest, must be set down to justify the appointment." Id. at 42.
On the filing of a petition, “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.” Ariz. Rev. Stat. §14-5303(C). The investigator must also interview the proposed guardian and inspect the proposed home. Id. The investigator and examiner shall file a report with court that contains a description of the diagnoses of the person, a list of functional impairments and an explanation of how such impairments prevent the person from making decisions, an analysis of the tasks of daily living the person is capable of performing independently, a list of all medications, and a prognosis for improvement and recommendation for the most appropriate plan of care. Ariz. Rev. Stat. § 14-5303(D). At the initial hearing, 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.” Ariz. Rev. Stat. § 14-5303(C). The hearing may be closed by request. Id.
- Ariz. Rev. Stat. §§ 14-5101: http://www.azleg.state.az.us/ars/14/05101.htm
- 14-12101: http://law.justia.com/codes/arizona/2011/title14/section14-12101
- 14-5303: http://www.azleg.gov/ars/14/05303.htm
- 14-5307: http://www.azleg.gov/ars/14/05307.htm
- 14-5312.01: http://www.azleg.state.az.us/ars/14/05312-01.htm
- Ariz. Sup. Ct. Rule 42, R.P.C. Ethics Rule 1.14: http://www.azbar.org/Ethics/RulesofProfessionalConduct/ViewRule?id=33
- Matter of Ray's Estate 25 Ariz.App. 40 (1975): http://www.leagle.com/decision/19756525ArizApp40_155.xml/MATTER%20OF%20ESTATE%20OF%20RAY