Guardianship
A Guardian may be appointed once an individual has been found to be incapacitated by a Judge of the Superior Court. Incapacity is usually a result of physical or mental illness, an accident or neurocognitive disorder. Incapacitated person is defined in A.R.S. 14-5101.
The appointment of a Guardian should be considered only when all other options have been exhausted. It should never be used in a retaliatory manner or as a convenience for health-care providers, family members or others. Guardianship can be an intrusive intervention in a person’s life.
The fiduciary must be able to assure the Superior Court that they can successfully meet the needs of the proposed ward if appointed. The Pima County Public Fiduciary does not provide direct care services, placement, or other funding, and relies on the individual’s own resources to provide for their needs.
In order for the Public Fiduciary to petition the court for appointment as Guardian, the Public Fiduciary must prove three conditions have been met per A.R.S 14-5304:
- The person meets the legal definition of an incapacitated adult.
- There is no other person or entity willing or able to serve, and no other less restrictive alternative is available.
- There are resources available that will make it possible for the Public Fiduciary to meet the person’s demonstrated need.
Conservatorship
A Conservator may be appointed once an individual has been found unable to manage their financial affairs by a Judge of the Superior Court and has assets that will be wasted or dissipated if not properly managed. This is not the same as being found incapacitated.
The appointment of a conservator should be considered only when all other options have been exhausted. It should never be used in a retaliatory manner or as a convenience for family members, creditors, or others. Conservatorship can be an intrusive intervention in a person’s life.
The fiduciary must be able to assure the Superior Court that they can successfully meet the needs of the proposed vulnerable adult if appointed. The Pima County Public Fiduciary does not provide direct care services, placement or other funding and relies on the individual’s own resources to provide for their needs.
In order for the Public Fiduciary to petition the court for appointment as Conservator, the Public Fiduciary must prove three conditions have been met per A.R.S 14-5401:
- The person meets the legal definition of a vulnerable adult.
- There is no other person or entity willing or able to serve, and no less restrictive alternative exists.
- There are resources available that will make it possible for the Public Fiduciary to meet the person’s demonstrated need.
The Pima County Public Fiduciary serves as Conservator for both vulnerable adults and minor children.
Personal Representative
A Personal Representative may be appointed by the Superior Court to administer the estate of a person who died, referred to as the “decedent.” The Public Fiduciary may serve in cases where two conditions have been met per A.R.S. 14-5602:
- There is no other person or entity willing or able to serve, and there is no less restrictive alternative.
- There are resources available that will make it possible for the Public Fiduciary to administer the probate of the assets.
The Personal Representative is responsible for identifying, inventorying and protecting all of the assets in the estate, paying bills and allowable claims against the estate, paying the administrative costs of probating the estate (including court-approved fiduciary fees) and distributing the remaining assets to the heirs or beneficiaries.
The Referral Process
In order for the Pima County Public Fiduciary to process a referral for any of our services, certain information is required. The Public Fiduciary relies on the information provided by the referring party. Please see the appropriate referral for required information.
The referral process varies depending on the services needed. Please select the appropriate referral form below for specific instructions.
Note that these forms are only to be used in cases where the Public Fiduciary is involved; for all other cases, the necessary forms are available through the Pima County Bar Association.
Referral Forms
Frequently Asked Questions
1. How do I know if someone may require a guardian?
a.
The answer may vary and is dependent on the circumstances. In general, a physician, nurse practitioner, or registered nurse must recommend an evaluation for incapacity by the court based on the person’s functional and cognitive limitations. There must also be a demonstrated need. Contact our office to discuss the specifics of your case.
2. What qualifies someone as a vulnerable adult?
a.
Per A.R.S. 46-451 the definition of “vulnerable adult” is an individual who is unable to protect themselves from abuse, neglect or exploitation by others.
3. What is demonstrated need?
a.
The guardian has to be able to accomplish something through their appointment. For example
the ward must have their own resources or benefits such as ALTCS available that the guardian or
conservator can utilize to meet their needs. Needs may include medical care or housing.
4. What are less restrictive alternatives?
a.
Less restrictive alternatives may vary depending on the services needed. Power of attorney, representative payee and surrogate decision maker are some examples of less restrictive
alternatives. The Public Fiduciary suggests you seek legal counsel to explore your options.
5. How do I find and choose a qualified fiduciary?
a.
A list of state-licensed professional fiduciaries can be found on the Arizona Supreme Court website. In addition to professional fiduciaries, family members may also serve as guardian and conservator. The Public fiduciary suggests you seek legal counsel to explore your options.
6. What is the difference between a Public Fiduciary and a fiduciary in private practice?
a.
They both hold the same license. The Public Fiduciary may only be appointed when there is no
less restrictive alternative and no other party willing or able to serve.
Private fiduciaries are not
the office of last
resort and may also serve in less restrictive roles such as trustee and power of attorney.
7. Is there a cost for Public Fiduciary services?
a.
Yes. The Public Fiduciary charges competitive fees that are approved by the Superior Cour
t. Our current fee schedule is available here.
8. Does the Public Fiduciary provide direct services?
a.
No. The Public Fiduciary staff are not direct care providers.
9. Does the Public Fiduciary fund placements or care services?
a.
No. The Public Fiduciary Office relies on the individual’s own resources and/or public benefits to provide the placement and care they need.
10. Does the referral of a person to the Public Fiduciary Office mean that the person now becomes the Public Fiduciary’s responsibility?
a.
No. The first task of the Public Fiduciary is to determine if guardianship or conservatorship is necessary and whether this can be proven to the court. The Office of the Public Fiduciary is
responsible only after appointment by the court.
11. When does The Public Fiduciary serve as conservator for Minors?
a.
A conservator is required when funds or property has been awarded to a minor child and the court determines those assets must be protected. The Public Fiduciary will serve when there is no
less restrictive alternative and no other person willing or able to serve.
Information and Resources
Public Fiduciary
Justin Cluck - Public Fiduciary
Justin Cluck was appointed Public Fiduciary for Pima County in May 2022. Justin Cluck graduated from the University of Mississippi, School of Law in 2002. While in law school, Justin served as legal extern to the Honorable Michael P. Mills, United States District Court for the Northern District of Mississippi. He was admitted to practice in Mississippi in 2002 and Arizona in 2017. His legal career has included the litigation of complex civil claims, catastrophic injuries, product liability, wrongful death actions and mass tort multi-district litigation. As part of his civil practice, Justin arranged services for injured or disabled individuals needing lifetime medical care, guardianships, asset protection, social security and workers' compensation benefits. He has extensive jury trial experience and has been published by the ABA on the topic of class action litigation. Justin was a law firm partner in private practice for 15 years before entering public service in Pima County.
Justin has spent his entire legal career advocating for the poor, the less fortunate and those who have been ignored or victimized and is eager to use that same zeal to advocate for the clients of the Public Fiduciary.
The Public Fiduciary serves as a court-appointed guardian or conservator for vulnerable adults or people who are incapacitated, in order to protect their legal rights and financial interests in probate court and as the estate administrator of deceased persons when no one else is willing or capable of serving in that capacity.
The Public Fiduciary also serves people who are estranged from their families or are subject to abuse or undue influence, have serious mental or physical health issues or have no place else to turn.
The diverse group of experienced, professional staff includes attorneys, paralegals, social work case managers, finance administrators, asset supervisors, benefit specialists, and administrative and support personnel as they perform the full spectrum of legal, financial, investigative and other services for vulnerable adults and incapacitated persons of Pima County.