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ARIZONA STATE SENATE
Fifty-Fifth Legislature, First Regular Session
AMENDED
guardian ad litem; protective proceeding
Purpose
Allows the court to appoint a guardian ad litem for outlined persons at any time during a trust, estate or protective proceeding if the court determines that the individual's interest would otherwise be inadequately represented.
Background
A guardian ad litem is a person appointed by the court as a representative to receive notice, give consent and otherwise represent, bind and act on behalf of a minor, incapacitated person, unborn child or person whose identity or location is unknown if: 1) the court determines that an interest is not represented regarding estate or other matters; or 2) the otherwise available representation might be inadequate. The court may appoint a single representative for several persons or interests. A guardian ad litem may act on behalf of the person represented with respect to any matter relating to trusts, estates or protective proceedings, whether or not a judicial proceeding concerning the trust or estate is pending. In making decisions, a guardian ad litem may consider general benefit accruing to the living members of the family of the person represented (A.R.S. §§ 14-1201 and 14-1408).
There is no anticipated fiscal impact to the state General Fund associated with this legislation.
Provisions
1. Allows the court to appoint a guardian ad litem for a minor, an incapacitated, an unborn or unascertained person or a person whose identity or address is unknown at any time during a trust, estate or protective proceeding if the court determines that the individual's interest would otherwise be inadequately represented.
2. Allows the court to appoint a guardian ad litem to represent multiple individuals or interests if a conflict of interest does not exist.
3. Requires the court to state the reasons for a guardian ad litem appointment in its order.
4. Entitles a guardian ad litem appointed in hearings regarding guardianship of incapacitated persons to, if not otherwise compensated, compensation from:
a) the estate of the ward if the petition is granted; or
b) the petitioner if the petition is denied.
5. Entitles a guardian ad litem appointed in hearings regarding guardianship of incapacitated persons to, if not otherwise compensated, compensation from the ward's estate or the petitioner if the petition is withdrawn by the petitioner or dismissed because of the petitioner's failure to prosecute, depending on facts and circumstances.
6. Entitles a guardian ad litem appointed in hearings regarding guardianship of incapacitated persons to, if compensation by the ward is not feasible, reasonable compensation from the court.
7. Entitles a guardian ad litem appointed in a protective proceeding to reasonable compensation:
a) from the estate of the protected person if the petition is granted; or
b) from the petitioner if the petition is denied.
8. Entitles a guardian ad litem appointed in a protective proceeding to reasonable compensation from the petitioner or the protected person's estate, depending on facts and circumstances, if:
a) the petitioner withdraws the petition; or
b) the court dismisses the petition because of the petitioner's failure to prosecute.
9. Requires notice of a hearing regarding the allowance of an intermediate or final account to be given to a guardian ad litem appointed for a protected person rather than a representative.
10. Allows the court to appoint a representative to perform specified duties if the court determines that a beneficiary's interest, rather than any interest, is not represented.
11. Clarifies that the beneficiary's interest represented by an appointed representative under the Arizona Trust Code is in respect to a proceeding concerning a trust and not an estate.
12. Stipulates that the court's authority to appoint a representative under the Arizona Trust Code is in addition to its authority to appoint a guardian ad litem.
13. Makes technical changes.
14. Becomes effective on the general effective date.
Amendments Adopted by Committee
2. Allows the court to appoint a guardian ad litem in a trust, estate or protective proceeding, rather than any proceeding.
3. Removes the proposed prohibition against a guardian ad litem being the individual's attorney.
4. Removes the proposed requirement that the court state the rights, duties and responsibilities of the guardian ad litem and the duration of the appointment in the required court order.
5. Requires notice of a hearing regarding the allowance of an intermediate or final account to be given to a guardian ad litem appointed for a protected person, rather than a representative.
6. Allows the court to appoint a representative to perform specified duties if the court determines that a beneficiary's interest, instead of any interest, is not represented.
7. Clarifies that the beneficiary's interest represented by an appointed representative under the Arizona Trust Code is in respect to a proceeding concerning a trust and not an estate.
8. Stipulates that the court's authority to appoint a representative under the Arizona Trust Code is in addition to its authority to appoint a guardian ad litem.
Senate Action
JUD 2/18/21 DPA 5-3-0
Prepared by Senate Research
February 19, 2021
JA/RC/kja