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Guardianship Statutes A.R.S. §§ 14-5101(3), -5304, and -5304.02 Violate Due Process

Posted by Ted A. Schmidt | May 31, 2024 | 0 Comments

In re the Matter of Annette Wood, No. 1 CA-CV 22-0710  (App. Div. I May 30, 2024) (J.Howe)


 The Coconino County Public Fiduciary petitioned the court to appoint a guardian for 63 year old Annette Wood to make financial and medical decisions for Wood. A health professional diagnosed her with unspecified dementia, severe intellectual disabilities and a cognitive communication deficit, but further noted Wood's impairments nevertheless do not “affect [her] ability to receive or evaluate information needed in making or communicating personal and financial decision[s].” Wood agreed she needed a guardian but sought a limited guardianship so she could retain the right to vote. The trial court conducted a hearing and pursuant to § 14-5304.02 placed the burden on Wood to prove by clear and convincing evidence that she “retained sufficient understanding to exercise her right to vote.” Based upon the evidence presented at the hearing the trial court appointed a general guardian finding  Wood lacked “sufficient understanding to exercise the right to vote.” Wood appealed and the Arizona Court of Appeals vacated and remanded.

The Arizona Constitution provides that “[n]o person who is adjudicated an incapacitated person shall be qualified to vote at any election . . . . Ariz. Const. art. 7, § 2(C). .  .Under the guardianship statutes, however, a person placed under a limited guardianship can retain the right to vote ‘if the person files a petition, has a hearing and the judge determines by clear and convincing evidence that the person retains sufficient understanding to exercise the right to vote.  A.R.S. § 14-5304.02; accord A.R.S. § 14-5101(3)'.”

Taking away a person's right to vote imposes the most severe burden upon the exercise of that right thus requiring a strict scrutiny analysis. The state must establish both that the law is “narrowly tailored to serve a compelling state interest and that it employs the “least restrictive means practically available.”  The guardianship statutes fail this test. They are neither “narrowly tailored” nor the “least restrictive means of achieving the Sate's interest” because all wards are affected not just those who may lack voting capacity.  Similarly, placing the burden of proof upon the ward to prove by clear and convincing evidence that she has the capacity to vote is not the “least restrictive means” of the accomplishing the State's purpose—placing the burden upon the petitioner is the more appropriate, less restrictive means that should apply.

About the Author

Ted A. Schmidt

Ted's early career as a trial attorney began on the other side of the fence, in the offices of a major insurance defense firm. It was there that Ted acquired the experience, the skills and the special insight into defense strategy that have served him so well in the field of personal injury law. Notable among his successful verdicts was the landmark Sparks vs. Republic National Life Insurance Company case, a $4.5 million award to Ted's client. To this day, it is the defining case for insurance bad faith, and yet it is only one of several other multi-million dollar jury judgments won by Ted during his career. He is certified by the State Bar of Arizona as a specialist in "wrongful death and bodily injury litigation".


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