Title 8 of the Arizona Revised Statutes discusses permanent guardianship for children. A guardian can be appointed for a child if all of the following guidelines have been met and having a permanent guardian is in the child's best interests:
- The child has been adjudicated a dependent child.
- The child has been in the custody of the potential permanent guardian for at least nine months. This can be waived by the court.
- Reasonable efforts to reunite the child and parents have been made by the division or agency which has care of the child. This may be waived if the parent is unwilling or unable to properly care for the child.
- The chances for the child to be adopted are remote or terminating parental rights would not be in the child's best interests.
Anyone can be considered for appointment as a permanent guardian, including relatives and foster parents. Children 14 or older can even nominate someone they want to be their guardian. The court will give primary consideration to the individual who will best meet the child's physical, mental, and emotional needs. If the child is of Native American descent, the guidelines laid out in the Indian Child Welfare Act must also be followed insuring that tribal concerns are addressed.
It is important to note that permanent guardianship does not sever parental rights; it only removes the parents' legal custody of the child. This also does not affect a child's inheritance rights from the parents. The court may also add provisions to the guardianship requiring visitation for the natural parents, siblings, or other relatives depending on what is in the child's best interests.
A permanent guardianship can be revoked. The child, one of the child's parents, or any party who was involved in the dependency proceeding can file a petition with the court to revoke the permanent guardianship. There must be a significant change in the circumstances of the dependency in order to file such a petition. This can include the parent being able and willing to properly care for the child or the permanent guardian not being able to properly care for the child. Regardless of the circumstances, the court will appoint a guardian ad litem for the child while the revocation petition proceeds in court. The guardianship will be revoked only if there is clear and convincing evidence that circumstances have changed and that the revocation will be in the best interest of the child.
The responsibilities of a permanent guardian are similar to those of a custodial parent. A guardian needs to care for the child, make sure the child receives an education, and support the child's development as he or she matures. This also means looking out for the child's possessions and taking an active part in the child's life. The extent of a guardian's responsibilities depends mostly on what the judge writes in the court order appointing the guardian. The responsibilities can vary some, but the items presented in this paragraph will hold for any guardian.
Depending on what the court order states, guardians may also have authority to approve medical treatment for their child. This can include other forms of professional care and special education. The guardian has the authority to enroll the child in school and determine where the child will reside. The guardian can even give consent for the child to be married or adopted. The extent of some of these duties may be limited by the judge, but they are within the power of the court to grant.
If a child commits a crime that damages property or injures a person, the child's guardian is liable for the damages caused. Arizona law sets a limit of $10,000 additional liability per wrongful act. In the case of shoplifting, the maximum additional liability is only $100. It does not matter if the guardian had no knowledge of what the child was going to do, the guardian is still held financially responsible.
Guardians can also be given authority to oversee a child's finances and may be entitled to reasonable compensation for room, board, and the child's clothing from biological parents or the state. The Arizona Department of Economic Security (DES) established an ongoing program of subsidized permanent guardianship. There are several items that a guardian must do to qualify to receive these subsidies.
One of the tasks is to apply for all benefits the child can receive from other state and federal programs first. Then DES will determine what the appropriate subsidy is and reduce that amount by how much is being received from the other programs. DES will conduct annual reviews to determine if the subsidy amount needs to be changed and whether the guardian is still eligible to receive the subsidy.
A permanent guardian who is receiving a DES subsidy must cooperate with DES during the annual reviews. A guardian must also notify DES in writing if other federal or state benefits change, the guardian moves, or something else changes that would discontinue the subsidy. Discontinuation can result from the permanent guardianship being terminated, the child's death, moving out of the guardian's home, or the child turning 18. The subsidy can be extended until the child turns 22 if they have not received a high school diploma or certificate of equivalency.
Probate Guardianship (Title 14)
Title 14 is primarily used for appointing a guardian through a person's will. It can also be used to appoint a guardian for an unmarried child if all parental rights of custody have been terminated or suspended by circumstances or prior court order. Aside from getting to know the child and learning what the needs are, a guardian appointed under Title 14 also keeps track of any assets the child has. The guardian manages these assets, taking care of any support or education the child may need. Excess money is then saved or invested for the child's future needs.
Anyone can petition the court to have a guardian appointed for a child. When the court sets a hearing date, the petitioner must send notice to the child involved in the case, the child's principal caregiver, and any living parent of the child. Prior to the hearing the petition must present proof to the court of sending notice. The court will still consider what is in the best interests of the child before determining if appointing a guardian is necessary. A child who is 14 years of age or older can also tell the court whether he or she wants a guardian and, if so, who would be preferred to be the guardian. A child can also petition the court to have a guardian removed. The court will take into account what is in the child's best interest before revoking a guardianship.
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