The year 2022 is a time for reflection as Fowler St. Clair, PLLC is proud to celebrate 10 years, making it a milestone anniversary.
Since opening its doors in the Phoenix valley, Sean St. Clair and Andrew Fowler’s partnership began by providing legal services in their law firm located in Gilbert, Arizona.
Building Trust with Excellent Service
They wanted to build a law firm that would provide far more than just expert legal counsel. Their goal was to offer clients outstanding customer service based on trust, mutual respect, and a reputation for dedication.
Growing and Expanding in the Valley
It was an exciting time as a start-up law firm, serving clients with various legal needs. But as the firm grew, they quickly realized they needed to expand, first with an office in Mesa, Arizona and ultimately in Scottsdale, Arizona, where they are now headquartered.
What started as a small firm, has grown to multiple attorneys and a robust administrative and legal staff with high-level synergy across all teams and practice areas; the result, providing stellar legal services to diverse clients across a spectrum of legal practices.
Expanding Beyond the Phoenix Area
Today Fowler St. Clair continues to expand beyond Scottsdale with locations in Casa Grande, Arizona, and Alpharetta, Georgia, representing clients across the U.S. in real estate law, business law, civil litigation, estate planning and probate.
As we reflect on the past decade and pause to celebrate this awesome milestone, we must express appreciation for the valued relationships we’ve developed over the years that have contributed to the Firm’s success.
There is a lot of confusion surrounding the topic of how to appoint a legal guardian for a minor. In this article we’ll discuss what a legal guardian is and the ins and outs of appointing one.
Who will care for my children in the event of parent death?
Caring for minor children in the event of parental death is a topic that many young families may not think about.
What would happen to their children who are under the age of 18?
Who will care for them in the event of a death, illness, or accident severe enough to render you unable to care for your child?
This decision is of the utmost importance to the wellbeing of your child if this scenario were to befall your family. It is critical that this topic is discussed and considered. Unfortunately, few people want to think about this.
While it may be easier to put off steps to prepare for these scenarios, it is important to prepare in advance to ensure a plan is in place. It is one of the most important provisions you can make for your child in the event that something were to happen to you.
What is a Legal Guardian?
If there is still one surviving parent, the child will legally be under the guardianship of that parent. This is true even if the parents are divorced.
In the event that neither parent is living, a legal guardian is required to assume the responsibilities of the parents.
A person lawfully invested with the power, and charged with the obligation, of taking care of and managing the property & rights of a person who, because of age, understanding, or self-control, is considered incapable of administering his or her own affairs.
Legal guardians can be grandparents, siblings, other relatives or friends of the family.
It’s up to the parent to decide who they think would be the best fit to care for their children in the event of their own death. This is not an easy decision. You may want to get some outside coaching and legal guidance as to how to choose as there are both legal, relational, and emotional ramifications to this decision.
What are the responsibilities of a legal guardian?
A legal guardian is someone who assumes the responsibilities of a parent in the event of the death of both parents of minor children.
The guardian is responsible to feed, clothe and provide shelter and education for the children until they become legal adults at 18 years of age. In most cases they will also assume the management of the inheritance for the child. This also includes making medical and financial decisions for the child including managing any money or assets that were inherited.
Being a legal guardian is an important role in a child’s life and something that should be given time and thought when accepting responsibility as the potential caregiver.
The guardian must be a legal adult, so it cannot be an older sibling who has not yet turned 18.
There can be co-guardians, meaning that there can be more than 1 person per child. You can also assign different guardians for different children if it is more fitting to the situation.
Choosing a Guardian for your Child
It may be difficult to agree with your spouse on when appointing a legal guardian. Involving the child in this discussion should be approached with much care and caution so as not to cause the child distress.
Once you have chosen a guardian you can always change your mind and select someone different in the future.
It is important to talk to the potential guardian about their selection. Most people who are asked have a positive reaction. However, some may be overwhelmed by the thought of such a large responsibility, in which case the person can choose to decline. There may also be a chance that they are not approved which is why it is good to have an alternate choice for backup.
There are a number of guardianship forms for Arizona parents on AZCourts.gov.
1. Best Interest of the Child
It is in the best interest of the child to choose a guardian who is caring and stable. The best-case scenario would be someone who the child already knows.
And someone who can keep their lives fairly consistent with what the child grew up with, such as their school and place of worship. This can help the children keep existing relationships intact and help with their emotional adjustment.
It is also important to choose someone you and the children trust. The less disruption to the child’s emotional stability, the better. Choosing someone they know and trust helps give this stability to the child during a very emotional time of losing their parents.
3. Financial Ability
Another thing to consider is if the potential guardian can afford to bring children into their life. This is especially true if they already have children of their own. As guardians, they will likely have the ability to use the assets left to the children to provide for their health, maintenance, education, and support. However, there may be restrictions placed by the court on how the children’s assets are used.
4. Love & Care
Talking to your children and spouse about who they would feel most comfortable with and take the child’s preference into consideration. The guardian should be some who can provide genuine love and care for the children.
5. Age & Health
The age and health of the guardian is also an important thing to consider. In some scenarios, it may make sense to name the grandparents of the children as guardians. However, you must consider if the grandparents will be up for the task of caring for minor children.
6. Lifestyle & Parenting Style
Another important thing to discuss with your spouse is what kind of care you would want your children to receive. Everyone has different parenting styles, so determining who would be the closest to the way you handle things is important. When choosing the guardian, talk to them about your lifestyle and especially how they will discipline your children.
7. Naming a Guardian Before one is Needed
There are various methods for naming someone to serve as Guardian before needed. When it becomes necessary, the person named as Guardian is typically appointed by a court. That is, unless there is found to be some reason that disqualifies that person from serving as Guardian. Listed below are several methods for appointing a Guardian before the situation arises:
For a Minor. Parents of a minor child may name their choice of Guardian in their last will and testament and/or living trust.
For an Adult Incapacitated Child. Parents of an adult incapacitated child also may indicate their choice of Guardian in their last will and testament and/or living trust.
For an Adult Person. An adult person may choose someone else to serve as their Guardian in the case of future incapacity.
8. Disqualifying a Guardian
A court can disqualify a person from serving as Guardian for many reasons. A few of them include; if they are a minor or a person who lacks experience, education. Courts also consider if the potential guardian is incapable of managing the person or estate of the Proposed Ward.
A person cannot be appointed as Guardian if their conduct is deemed to be notoriously bad. It is presumed not to be in the best interest of the Proposed Ward if the proposed guardian has been convicted of:
Any sexual offense
Injury to a child or to the elderly or a disabled person
Abandoning or endangering a child
A Terrorist threat
Continuous violence against the family of the ward or incapacitated person
9. Contesting a Guardianship Proceeding
When a Proposed Guardian files an application, the Proposed Ward or any other Interested Person may contest the appointment of the Proposed Guardian. An application for guardianship may be contested based on claims that:
The Proposed Ward is not incapacitated and does not need a Guardian,
There is someone with higher priority to be appointed Guardian of the Proposed Ward,
There are alternatives to guardianship or supports and services available that make appointment of a Guardian unnecessary, or
The Proposed Guardian is disqualified from serving as Guardian for the Proposed Ward.
10. Order of Priority to Serve as Guardian
For Guardianship of a Minor. The order of priority for Guardian of a minor is as follows:
A person named by the minor’s parents to be Guardian if both parents are deceased.
Nearest ascendant. Those up the family tree from the child (the court decides if there are two equal ascendants based on the best interest of the child). Naturally, parents are the preferred Guardian of their own children, but extended family members will usually be considered next.
Nearest of kin (the court decides if there are two equal kin based on the best interest of the child).
If no relatives, the court decides based on the best interest of the child.
If the minor is at least 12 years old, they can file a written statement requesting a specific person to be their Guardian. The court will appoint the minor’s choice of Guardian as long as the choice is in the minor’s best interest.
11. Guardian of an Incapacitated Adult.
The order of priority for Guardian of an incapacitated adult is as follows:
A person designated by the Incapacitated Person in writing prior to becoming incapacitated.
Incapacitated Person’s spouse.
Nearest of kin (the court decides if there are two equal kin based on the best interest of the Proposed Ward).
Person best qualified to serve as Guardian (the court decides if there are two equally qualified persons based on the best interest of the Proposed Ward).
Before appointing a legal guardian, the court will consider the Proposed Ward’s preference and give due consideration to that preference.
It is important to be prepared for a tragic event like this to help ease the transition for your children and your family. If you put yourself in the shoes of both the children and the guardians it is easy to see why being prepared ahead of time can help ease transitions.
What should I do to prepare my family legally?
The best way to be prepared is to have a will or trustin place that will identify who the guardians of your minor children are going to be. This helps to make sure that your wishes are honored and it helps to prepare both the children and the future guardians for what they may face in the future.
What is the importance of having a written will?
It is important to have the information about who will be responsible for your children in a written will or trust. Everything must be in writing. Verbal contracts and not enough.
Also be sure to update the will or trust frequently, so your most current wishes are reflected in the document in place at the time of your incapacitation or death.
If you have a will or trust that identifies who that guardian is, this takes priority in court. You get to make decisions beforehand, so you can prevent any fighting in court after you’ve passed away.
With a will in place, the child can have a seamless transition through that difficult time of losing you as the parent. They will still grieve, but the transition for their care will be less stressful. They will be cared for in the place and by the people you planned to be the best fit for them.
What if I do not have a written will?
If you do not have the information in writing (dying intestate), the process of appointing a guardian is a bit more complicated.
Don’t assume that a relative will simply take over parenting responsibilities for your child. The court will need to consider who will be able to provide the most stable and nurturing environment for the child.
Family will be chosen first by the courts so if you want a friend to be the designated legal guardian, you must specifically designate this.
If no one has been chosen ahead of time, then the remaining family members are going to have to go to court to seek the guardianship of your minor child.
It will be up to the family members to argue why they are the best choice for the child versus another person.
This can turn into a contentious process with family members fighting over the custody of the child.
This is why it’s so important to make sure that you take care of that beforehand.
At Fowler St. Clair, we have seen some tragic situations and witnessed some difficult battles in the courtroom over guardianship.
Our goal is to help you avoid situations like these to make the transition smooth and less painful for everyone who is involved.
Continuing the series on Litigation basis, this section delves into Chapter 3 which discusses disclosure statements. Contact Fowler St. Clair for any litigation services you might need if you live in Scottsdale or Mesa, AZ.
Rule 26.1 Disclosure Statements
The purpose of a Rule 26.1 disclosure statement is to fairly, accurately, and candidly apprise the other side of your case. The most critical components of the disclosure statement are witnesses and documents.
If a witness or document is not disclosed in a Rule 26.1 disclosure statement, the undisclosed witnesses and documents likely cannot be used at trial. This is why it is important to focus on gathering as many documents as possible and identifying as many witnesses as possible early on in the case so that they can be disclosed with the initial Rule 26.1 disclosure statement.
Each side also has a duty to disclose all documents that are relevant or likely to lead to the discovery of admissible evidence. The failure to disclose such documents can result in sanctions.
Rule 26.1 disclosure statements are to be exchanged within 40 days of the filing of a responsive pleading to the complaint, counterclaim, cross-claim or third-party complaint. The initial disclosure statement must be supplemented as additional witnesses and documents come to light.
Each new document or witness must be disclosed within 30 days after they are revealed or discovered. If a witness or document is disclosed later than 60 days before trial, a motion must be filed asking the court to extend the time for disclosure.
All possible witnesses should be disclosed. And, the description of each witness should be as broad as possible and then narrowed to identify specific areas of testimony. For example, the description should read “Mr. Smith will testify as to his personal knowledge of the facts set forth in the complaint and this disclosure statement. Specifically, Mr. Smith will testify that . . . . ”
The best way to review and organize documents is by placing them in chronological order. This will allow for a better understanding of the timeline of events and eliminate any duplicates.
When eliminating duplicates, care should be taken to make sure the document that is eliminated is truly a duplicate and does not have a slight variance to the other document (i.e. handwritten notes or edits).
Once the documents are placed in chronological order and the duplicates are eliminated, they should be Bates labeled. Bates labeling allows for easy identification of documents at a hearing or trial. It also provides proof that the documents have been disclosed. Most professional PDF programs have the ability to create Bates labels.
The initial disclosure statement must be verified.
The most critical components of the disclosure statement are witnesses and documents. If a witness or document is not disclosed in a Rule 26.1 disclosure statement, the undisclosed witnesses and documents likely cannot be used at trial. This is why it is important to focus on gathering as many documents as possible and identifying as many witnesses as possible early on in the case so that they can be disclosed with the initial Rule 26.1 disclosure statement. Each side also has a duty to disclose all documents that are relevant or likely to lead to the discovery of admissible evidence. The failure to disclose such documents can result in sanctions.
The importance of having a litigation attorney advising you cannot be stressed enough. We understand that there may be financial reasons that cause people to consider representing themselves in court. However, because of the intricacies of the law and the rules litigants must follow, minor mistakes in self-representation can end up costing more than hiring a qualified and experienced attorney.
The Top 10 Mistakes Made in Self-Representation
With the above aside, if you decide to provide your own representation in court, please consider this list of the 10 most common litigation mistakes made by self-represented individuals.
10. Relying On the Internet
While there is a lot of useful information available on the Internet, there is also a lot of incorrect information. Even websites for the courts, at times, contain out of date; and therefore, inaccurate information.
Additionally, the Internet cannot teach a person how to handle a matter that generally takes years of experience to fully understand. The Internet will provide basic information. However, the advice and coaching of an experienced attorney is truly necessary for an unrepresented party to properly handle a lawsuit.
Have you been involved in a case that was lost because of a simple litigation mistake? If so feel free to comment below.
9. Failing to Respond to Requests for Admissions
Requests for admissions are questions served on the opposing party that asks the opposing party to admit or deny certain facts. Generally, the facts that the opposing side are asked to admit are critical to the case. The failure to respond to the requests for admissions within the required time results in the admissions being deemed admitted. This can be extremely damaging to a party’s case or defense.
8. Pursuing Red Herrings
Most court cases can be broken down into a few critical issues. However, there may have been a number of issues or disputes that occurred between opposing parties to a lawsuit prior to the lawsuit being filed. These prior disputes or issues may have little to nothing to do with the lawsuit. And, the court will have little interest in hearing about them.
A party who has little experience with lawsuits and appearing in court may believe it is necessary to go into the details of these issues or disputes. In reality, addressing these items only hurts their case because it draws attention away from the critical issues. It also hurts the party’s credibility when they finally get around to addressing the critical issues.
7. Making Decisions Based Upon Emotion
Litigation can be an emotional process. People do not think as clearly when emotions are high. This leads to poor decision making. These poor decisions can be seen in deciding whether to take a settlement offer. It can also be seen in the work performed, motions filed, and evidence presented to the court.
The most successful parties in litigation are not always the ones who have the best case. Instead, it is generally the party who uses a cost-benefit analysis to make decisions during the course of the litigation. By making a cost-benefit analysis the party can decide what work should be performed, what motions should be filed when to settle the case, and what needs to be presented to the court.
6. Failing to Make Proper Disclosures
The disclosure rules require each party to disclose the legal basis for their claim or defense, the names of all witnesses and a list of documents that will be presented. The disclosures must be updated as new witnesses and documents are revealed. If documents and witnesses are not timely disclosed, they may not be used at trial.
Proper disclosure also means Bates labeling and organizing the documents so that it is clear to the court and the other side that documents to be presented at trial or a hearing have been disclosed. Bates labeling refers to the placing of a sequential number scheme somewhere on each and every document. Then each time a new document is disclosed it should be accompanied by a disclosure statement that lists the document and the corresponding number.
The other side may object at trial to the introduction of a document on the basis that it has not been disclosed. There should be no difficulty in proving that it has been disclosed if it is Bates labeled and reflected on a disclosure statement. If either of these items is missing, it may be difficult to show that it has been disclosed and the court may preclude the document from being used.
5. Failing to Properly Respond to Dispositive Motions
The two most common dispositive motions are motions to dismiss and motions for summary judgment. Both of these motions seek a partial or full resolution of the issues in the case. A motion to dismiss is generally based solely upon the law. A proper response will give a legal basis for the denial of the motion.
A motion for summary judgment is generally based upon facts and law. A motion for summary judgment must be accompanied by a separate statement of facts. If facts set forth in a separate statement of facts are not properly controverted, they will be deemed admitted. Having the facts deemed admitted can be very damaging to a party’s claims or defense.
4. Not Being Fully Prepared to Present Their Case
Preparing for a trial is no simple task. Exhibits must be identified, marked and organized so that they are easy to locate and present. Opening statements, direct examinations, cross examinations and closing argument must be outlined.
Finally, each side needs to be prepared to present and argue any outstanding legal issues. Not putting in the time to prepare and “winging it” will not work. Even if a person has a strong case, they may very well lose at trial if the presentation is lacking.
3. Failing to Update Their Contact Information with the Court and the Opposing Side
Every party to a lawsuit is responsible for keeping their contact information current with the court and opposing counsel. However, parties sometimes move and fail to update their contact information with the court. Important documents may be filed with the court and mailed to the party at their address of record. However, if the address is not current, the party may not receive the documents.
This may result in that party not timely responding to the documents. The court will generally not accept the fact that the party failed to update their contact information as a defense for failing to timely respond to discovery or motions.
2. Not Fully Knowing the Law that Applies to Their Case
Legal research can be complicated. The key to legal research is knowing where to look and what to look for. The law that applies to a particular case is generally found in statutes, regulations and published cases.
Case law can be found in online databases that generally have a cost associated with them. It can also be found at a law library. Case law research at the law library will generally require the assistance of a librarian as there is a three step process to finding relevant case law.
There is also a wealth of case law and relevant application available on the web, often in blogs like this one from law firms. However, it is vital to make sure that when you research case law, you keep in mind that the information you find on the internet may 1) not be accurate, 2) not be applicable in your jurisdiction, and 3) not up-to-date.
In order for a party to represent themselves without the assistance of an attorney, they will need to know how to perform the necessary legal research to locate the law that applies to their case.
1. Failing to Sign the Answer
This is probably the single most common, yet easiest mistake to avoid. An answer to a complaint must be signed by each and every defendant or by their attorney. It is not uncommon for a married couple to assume that one spouse can properly sign the answer. This is not true. If only one spouse signs the answer, then a default judgment may be entered against the other spouse’s sole and separate property.
This mistake is also commonly made when a corporation or llc is a defendant in the superior court. A corporation and llc may not represent itself in the superior court. This means it must hire an attorney who must sign the answer. If an owner and employee signs and files the answer on behalf of an entity in superior court, a default judgment may be entered against the entity.
Fowler St. Clair is excited to announce that three of its attorneys, Andy Fowler, Sean St. Clair and Dustin Schanaker, will be traveling to Malawi, Africa to offer their legal expertise to aid Malawian’s in need.
Serving with Missional Law
They will be serving with Missional Law, a non-profit organization that works with legal professionals in Malawi to protect the human and due process rights of the country’s poor, vulnerable and marginalized. Malawi is a country with a population of approximately 17,500,000 people located in Southeast Africa.
Working To Help Those Unjustly Imprisoned
While in Malawi, their team will work with Malawian legal professionals to identify and assist with cases in which men and women are being unjustly held in prison. This work includes investigating cases that are appropriate for the filing of bail applications or obtaining release orders for those that have been convicted of petty offenses but will serve significant prison time unless a nominal fine is paid.
Protecting Women’s Rights
In addition to the work in the prisons, their team will work to assist in the effort to combat child marriage, violence against women and widow property grabbing. They will partner with another non-profit organization called Live Love to host a village legal clinic. The focus of the clinic will be to educate the chiefs, village headman, and members of the human rights committee within that village and surrounding villages on the issues of child marriage, violence against women and widow property grabbing.
Meeting with Malawi’s Parliament
Finally, their team will participate in meetings with government officials, including a member of Malawi’s Parliament, to strategize how Missional Law can provide assistance with improving the conditions of Malawi’s overcrowded prisons, the inefficiencies of its justice system, and the fight against child marriage and violence against women.
To learn more about Missional Law, you can visit its website at missionallaw.org.
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