NOTICE: NOT FOR OFFICIAL PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL

AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

In the Matter of Guardianship and Conservatorship of: 

ALICE D. HICKEY, an Adult,

JOHN M. HICKEY, Petitioner/Appellee.

v.

JAMES D. HICKEY, Respondent/Appellant.

No. 1 CA-CV 23-0578

Appeal from the Superior Court in Yavapai County

No. S1300GC202380024

The Honorable John David Napper, Judge

The Honorable Linda Wallace, Judge Pro Tempore

AFFIRMED

APPEARANCES

James Hickey, Douglas

Respondent/Appellant

H&M Law, PLLC, Cottonwood

By William J. Macdonald

Counsel for Petitioner/Appellee

FILED 10-01-2024
HICKEY v. HICKEY

Decision of the Court

2

MEMORANDUM DECISION

Judge D. Steven Williams delivered the Court’s decision, in which 

Presiding Judge Michael J. Brown and Judge Daniel J. Kiley joined.

W I L L I A M S, Judge:

¶1 James Hickey appeals the superior court’s appointment of his 

brother, John Hickey, as the guardian and conservator of Alice Hickey, the 

parties’ mother. For the following reasons, we affirm.1

FACTUAL AND PROCEDURAL BACKGROUND

¶2 After 83-year-old Alice experienced a medical event requiring

hospitalization, John petitioned for both a temporary and a permanent 

appointment as her guardian and conservator. See A.R.S. § 14-5303(A) 

(authorizing “any person interested” in an “alleged incapacitated . . . 

person’s affairs or welfare” to “petition for the appointment of a 

guardian”); A.R.S. § 14-5404(A) (authorizing “any person who is 

interested” in the “estate or affairs” of a “personal allegedly in need of 

protection” to “petition for the appointment of a conservator”). In the 

petition, John alleged that Alice is mentally and physically impaired and 

that an unnamed “close relative” has financially exploited her. 

¶3 The superior court appointed an attorney, a physician, and a 

court investigator and scheduled a hearing on the petition. With a hearing 

date set, John provided notice to Alice via personal service, to his sister by 

certified mail, and to James, who is incarcerated, through first class mail.

See A.R.S. § 14-5309(A)(1) (requiring that notice of a guardianship hearing 

“be given to . . . the alleged incapacitated person and that person’s spouse, 

parents and adult children”); A.R.S. § 14-5405(A)(1), (2) (requiring that 

notice of a conservatorship proceeding “be given to . . . [t]he protected 

person . . . [and the] adult children of the protected person or person 

allegedly in need of protection”). Given his inability to attend in-person, 

James moved to attend the hearing virtually. As part of his motion, James 

noted that Alice had designated him as her legal agent, attaching copies of 

Alice’s durable and health care powers of attorney. 

1 For clarity, we respectfully refer to all parties by their first names.
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Decision of the Court

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¶4 Meanwhile, the court-appointed physician filed a health 

professional’s report with the court, detailing his examination findings that 

Alice suffers from paranoid schizophrenia and dementia - characterized by 

hallucinations, delusions, physical aggression, mood disturbance, memory 

loss, emotional distress, and cognitive impairment. Because these 

conditions will cause Alice’s “baseline functioning” to “progressively 

decline,” the physician opined that she “will never gain back the capacity 

to care for herself” unassisted. The appointed investigator likewise 

submitted a report to the court, recounting her interviews with Alice, John, 

and James. During their conversation, Alice told the investigator that: (1) 

she does not want John “interfering in her business,” (2) “James is the only 

person she can trust,” and (3) she has sent James an undisclosed amount of 

money during his incarceration. John told the investigator that Alice: (1)

sexually abused both him and James as children and (2) maintains “a sick 

relationship” with James, including emailing “lewd videos” to him in 

prison despite his eighteen convictions for voyeurism and surreptitious 

recording. Finally, James told the investigator that: (1) his parents lost their 

house when they pledged it as collateral “for his bail and he skipped out,” 

(2) “he has had a hard life and is sorry for his criminal activity,” and (3) 

Alice sends him money in prison every month. Based on these interviews

and her review of both the health professional’s report and Alice’s video 

emails to James, the investigator recommended granting John’s petition for 

appointment as guardian and conservator. 

¶5 At the hearing on the petition for temporary guardianship

and conservatorship, the superior court granted James’s motion to 

participate remotely, but he did not appear. After receiving John’s 

testimony (the sole witness) and reviewing the submitted reports, the court 

found Alice incapacitated and appointed John as her temporary guardian 

and conservator. Counsel for Alice objected, and the court set an 

evidentiary hearing on John’s petition for permanent guardianship and 

conservatorship. 

¶6 A few weeks later, James filed an “omnibus motion”

challenging John’s appointment as Alice’s guardian and conservator. 

Among other things, James alleged that John has emotionally abused and 

neglected Alice.

¶7 At the evidentiary hearing on the petition for permanent 

guardianship and conservatorship, James did not appear, and the superior 

court summarily denied his omnibus motion. After Alice, John, and the 

appointed investigator testified, the court continued the remainder of the 

hearing. 
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¶8 Less than two weeks later, James filed an “injunction,” 

arguing the superior court lacked jurisdiction over the matter and 

requesting an order vacating John’s appointment as temporary guardian 

and conservator. Thereafter, James filed a motion to dismiss, asserting, 

among other things, that the guardianship proceedings “violated due 

process” because he has priority of appointment as Alice’s designated agent 

under her durable and health care powers of attorney. 

¶9 At the continued evidentiary hearing on the petition for 

permanent guardianship and conservatorship, the superior court 

summarily denied James’s pending motions. Alice and the physician

testified, and several exhibits were submitted for the court’s consideration. 

The court then entered an order appointing John as Alice’s permanent 

guardian and conservator. 

¶10 James moved for a new trial, alleging that: (1) the court denied 

him the opportunity to appear at the evidentiary hearing, (2) John has 

emotionally abused Alice, (3) John has threatened and intimidated other 

family members, and (4) John has committed sex crimes. The court denied 

James’s motion for new trial. 

¶11 James timely appealed. We have jurisdiction under Article 6, 

Section 9, of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1) and 

-2101(A)(9).

DISCUSSION

¶12 James challenges the superior court’s appointment of John as 

Alice’s permanent guardian and conservator. He argues that: (1) the court 

lacked jurisdiction “to hear the case,” (2) John’s petition failed to comply 

with the governing statutory requirements, (3) the evidence failed to 

substantiate John’s allegations of incapacity, and (4) the court misapplied 

the law governing priority of appointment. 

¶13 Although James’s brief does not comply with the civil 

appellate rules, failing to adequately cite to the record and legal authority 

upon which he relies, see ARCAP 13(a)(7)(A), we exercise our discretion to 

address his claims on the merits to the extent they are supported by 

reasonable explanation. See Delmastro & Eells v. Taco Bell Corp., 228 Ariz. 134, 

137, ¶ 7 n.2 (App. 2011) (noting appellate court’s discretionary authority to 

consider the merits of deficient briefs). We also note that the appellate 

record does not contain any transcripts of the evidentiary hearings. Our

procedural rules task appellants with ordering “transcripts of superior 

court proceedings not already in the official record that the appellant deems 
HICKEY v. HICKEY

Decision of the Court

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necessary for proper consideration of the issues on appeal,” and if an 

“appellant will contend on appeal that a judgment, finding or conclusion, 

is unsupported by the evidence or is contrary to the evidence, the appellant 

must include in the record transcripts of all proceedings containing 

evidence relevant to that judgment, finding or conclusion.” ARCAP 

11(c)(1)(A), (B). Here, James failed to comply with his obligations under 

ARCAP 11. “When an appellant fails to include all transcripts or other 

documents, we assume the missing portions of the record support the 

[superior] court’s findings and ruling[s].” State ex rel. Brnovich v. Miller, 245 

Ariz. 323, 324, ¶ 5 n.1 (App. 2018). Therefore, to the extent James’s

challenges implicate hearing transcripts, we presume that the record 

supports the court’s rulings.

I. Jurisdiction

¶14 Without explanation or citation to legal authority, James 

argues that the superior court acted “in excess” of its jurisdiction. 

Jurisdiction refers to a court’s power and authority “to hear and determine 

a controversy.” Grosvenor Holdings, L.C. v. Figueroa, 222 Ariz. 588, 594, ¶ 13 

(App. 2009) (quotation and citation omitted). We review de novo whether a 

court has the authority to hear a case relating to a specific subject matter. 

Buehler v. Retzer ex rel. Indus. Comm’n, 227 Ariz. 520, 521, ¶ 4 (App. 2011).

We also review de novo whether a court has the authority to exercise its 

power over a particular person. Ruffino v. Lokosky, 245 Ariz. 165, 168, ¶ 9 

(App. 2018).

¶15 “To the full extent permitted by the constitution,” the 

superior court has subject matter jurisdiction to adjudicate all issues 

relating to the protection of “incapacitated persons.” A.R.S. § 14-1302(A)(2). 

As part of that jurisdiction, the court has the authority to appoint a guardian 

and a conservator. A.R.S. § 14-5102(A) (“The court has jurisdiction over 

protective proceedings and guardianship proceedings.”); A.R.S. § 14-5402 

(“After the service of notice in a proceeding seeking the appointment of a 

conservator or other protective order and until the termination of the 

proceeding, the court in which the petition is filed has . . . [e]xclusive 

jurisdiction to determine the need for a conservator[.]”). Likewise, under the 

Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act, 

the superior court “has jurisdiction to appoint a guardian” if Arizona “is 

the respondent’s home state.” A.R.S. § 14-12203; see also A.R.S. 

§ 14-12201(A)(2) (defining “home state” as “the state in which the 

respondent was physically present, including any period of temporary 

absence, for at least six consecutive months immediately before the filing of 

the petition”). No party contests that Alice owns a home in Arizona and 
HICKEY v. HICKEY

Decision of the Court

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resided in the state for at least six consecutive months before the medical 

event that precipitated John’s petition for guardianship and 

conservatorship. Therefore, the superior court had the authority both to 

hear and determine a guardianship/conservatorship controversy and to 

exercise its power over Alice.

II. Procedural Bar

¶16 John contends that James’s “continued participation in this 

matter, including this appeal,” is procedurally barred because he neither 

timely objected before nor appeared at the initial hearing on the petition for 

guardianship and conservatorship. As support for this contention, John 

cites Arizona Rule of Probate Procedure (“Probate Rule”) 15(e)(2), which 

states that an “interested person” who “does not timely file a written 

response before the initial hearing on the petition . . . must attend the 

hearing [and] orally respond to the petition at the hearing.” (Emphasis 

added.) See A.R.S. § 14-1304 (“Unless specifically provided to the contrary 

in [Title 14] or unless inconsistent with its provisions, the rules of probate 

procedure govern formal proceedings under [Title 14].”).

¶17 In response, James argues that he should not be penalized for 

his absence from the initial hearing, asserting the superior court “failed to 

call [his prison] facility” and he had no other means of participating.

Indeed, according to James, the court “literally ignored” his attempt to 

appear at the hearing. 

¶18 As recorded in the initial hearing’s minute entry, the superior 

court granted James’s motion for virtual attendance and then simply noted 

that he “[wa]s not present.” But we need not decide whether James’s

request to appear remotely at the initial hearing satisfied Probate Rule 

15(e)(2), or whether his motion, noting his designation as Alice’s legal agent 

and attaching her durable and health care powers of attorney, qualified as

a “written response” under Probate Rule 15(e)(1) (“An interested person 

who opposes the relief requested in a petition should file a response that 

objects to the petition . . . no later than 7 calendar days before the initial 

hearing on the petition.”). The superior court was in the best position to 

evaluate the adequacy of James’s efforts to participate in the hearing, 

including the sufficiency of its own efforts to facilitate his appearance, and 

it did not find his continued participation in the proceedings procedurally 

barred. In the absence of hearing transcripts, we presume the record 

supports the court’s implicit ruling and likewise find no procedural bar. 
HICKEY v. HICKEY

Decision of the Court

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III. Compliance with Statutory Requirements

¶19 James argues that John’s petition for guardianship and 

conservatorship was “fatally defective.” Specifically, James contends that 

John’s pleading failed to disclose, as required by statute, that Alice had 

executed durable and health care powers of attorney designating him as her 

agent. 

¶20 Under A.R.S. § 14-5303(A), any person interested in an alleged 

incapacitated person’s “affairs or welfare may petition for the appointment 

of a guardian.”

B. The petition shall contain a statement that the authority 

granted to the guardian may include the authority to 

withhold or withdraw life sustaining treatment . . . and shall 

state, at a minimum and to the extent known, all of the 

following:

. . . .

11. Whether the alleged incapacitated person is the principal 

under a health care power of attorney, and, if so, a copy of 

that health care power of attorney must be attached to the 

petition.

12. Whether the alleged incapacitated person is the principal 

under a durable power of attorney in which the alleged 

incapacitated person has nominated someone to serve as 

guardian, and, if so, a copy of that durable power of attorney 

must be attached to the petition.

A.R.S. § 14-5303(B) (emphasis added).

¶21 Nothing in the record suggests that John knew Alice had

executed durable and health care powers of attorney when he filed the 

petition. More importantly, the amendment to A.R.S. § 14-5303(B), which 

added subsections (11) and (12) requiring disclosures of durable and health 

care powers of attorney, did not take effect until October 30, 2023. See 2023 

Ariz. Sess. Laws, ch. 195, § 6. Accordingly, when John filed the petition for 

a temporary and permanent appointment as guardian and conservator in 
HICKEY v. HICKEY

Decision of the Court

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April 2023, no statutory provision required such disclosures. Therefore, 

James has not demonstrated that the petition was statutorily deficient.2

IV. Evidence of Incapacity and Need for a Guardian/Conservator

¶22 James contests the evidentiary basis for the appointment of a

guardian and conservator for Alice. He characterizes John’s allegations of 

incapacity as either “unfounded or of de minimis significance.” 

¶23 As authorized under the governing statutes, the superior 

court may appoint a guardian and conservator if it finds by clear and 

convincing evidence that mental illness, physical impairment, or chronic 

drug use renders the prospective ward unable to manage her affairs and 

“make or communicate responsible decisions” concerning her welfare.

A.R.S. §§ 14-5101(3); -5304(B); -5401(A)(2); see also Matter of Guardianship of 

Reyes, 152 Ariz. 235, 236 (App. 1986). “To obtain [the] reversal” of an 

appointment, “the appellant must show that the [superior] court abused its 

discretion in ruling as it did.” In re Guardianship of Kelly, 184 Ariz. 514, 516, 

518 (App. 1996); see also Countryman v. Henderson, 17 Ariz. App. 218, 221 

(1972) (explaining the superior court has “wide latitude” in “exercising [its] 

discretion” to achieve the result “most conducive to the permanent 

well-being of the ward”).

¶24 Contrary to James’s contention, the evidence clearly and 

convincingly shows that Alice is an incapacitated person in need of a 

guardian and conservator under the statutory standards. Although the 

examining physician found little evidence to support John’s allegation that 

Alice is substantially impaired physically, simply noting in his report that 

she has an “unsteady gait” and some mobility challenges due to a back 

injury, he diagnosed her with substantial mental impairment caused by 

paranoid schizophrenia and dementia. Given the progression of her

psychotic episodes, generalized disorientation, and inability to make 

decisions, the examining physician opined that Alice will never be able to 

care for herself without assistance. Likewise, as detailed in the court 

investigator’s report, Alice’s interview statements reflect considerable 

psychosis, including her claims that since she entered a behavioral facility

following her hospitalization, she “gets beat up daily,” “has been strangled 

three times,” sexually assaulted, and forced to “put sixty men in prison,” 

despite no visible “bruising or marks.” Based on her in-person assessment, 

2 As noted, James submitted copies of Alice’s durable and health care 

powers of attorney before the initial hearing on the petition for temporary 

and permanent guardianship/conservatorship. 
HICKEY v. HICKEY

Decision of the Court

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the investigator opined that Alice needed a guardian and conservator. 

Moreover, in the absence of transcripts, we presume that the hearing 

testimony of the physician and the investigator further supports the court’s 

finding of incapacity. See Kelly, 184 Ariz. at 518 (“the court was entitled to 

determine” the evidence “it found to be more convincing”). Because the 

reports, and presumably the testimony elicited at the evidentiary hearing, 

provided ample evidence that mental illness renders Alice incapable of

managing her affairs and making responsible decisions concerning her 

care, the court did not abuse its discretion in finding her incapacitated and 

in need of a guardian and conservator.

V. Priority of Appointment

¶25 James argues that the superior court erred in appointing John 

rather than himself as Alice’s guardian and conservator because Alice 

designated him as her agent in her durable and health care powers of 

attorney. According to James, he had statutory priority of appointment, and 

the court had no authority to bypass him. 

¶26 We review a superior court’s interpretation and application 

of statutes de novo. Ariz. Republican Party v. Richer, 257 Ariz. 210, 215, ¶ 10 

(2024). We defer, however, to the court’s factual findings unless clearly 

erroneous, id., and will affirm the court’s rulings if “correct for any reason.” 

Glaze v. Marcus, 151 Ariz. 538, 540 (App. 1986).

¶27 The governing statutory provisions provide, in relevant part:

B. The court may consider the following persons for 

appointment as guardian in the following order:

. . . .

3. The person nominated to serve as guardian in the 

incapacitated person’s most recent durable power of attorney 

or health care power of attorney.

. . . .

5. An adult child of the incapacitated person.

. . . . 

F. For good cause the court may pass over a person who has 

priority and appoint a person who has a lower priority or no 
HICKEY v. HICKEY

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priority. For the purposes of this subsection, “good cause” 

includes a determination that:

. . . .

2. Honoring the incapacitated person’s durable power of 

attorney or health care power of attorney would not be in the 

physical, emotional or financial best interest of the 

incapacitated person.

A.R.S. § 14-5311 (emphasis added).

A. The court may appoint an individual . . . as conservator of 

the estate of a protected person[.] The following are entitled to 

consideration for appointment [as conservator] in the order 

listed:

. . . .

3. The person nominated to serve as conservator in the 

protected person’s most recent durable power of attorney.

. . . .

5. An adult child of the protected person.

. . . . 

B. . . . The court, for good cause, may pass over a person 

having priority and appoint a person having a lower priority 

or no priority. For the purposes of this subsection, “good 

cause” includes a determination that:

. . . . 

2. Honoring the protected person’s durable power of attorney 

would not be in the physical, emotional or financial best 

interest of the protected person.

A.R.S. § 14-5410 (emphasis added).

¶28 Both A.R.S. §§ 14-5311 and -5410 rank preferred appointees 

for the superior court’s consideration. Each statute also contains a “good 

cause” provision that expressly authorizes the court to “pass over a person” 

who has higher priority and appoint a person who has lower priority, or no 
HICKEY v. HICKEY

Decision of the Court

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priority, if the court finds that honoring the incapacitated (and protected) 

person’s durable power of attorney would be contrary to the incapacitated 

person’s best interests. See Kelly, 184 Ariz. at 519 (explaining the legislature 

authorized the court to “pass over a preferred family member” if “such 

appointment . . . works against the ward’s best interest”). Thus, contrary to 

James’s contention, neither statute requires the court to appoint the highest 

priority individual as guardian or conservator. 

¶29 Here, the undisputed record reflects that James “is currently 

in the custody of the Arizona Department of Corrections and will remain 

there for another six years.” Considering the associated restrictions on 

James’s ability to monitor and care for Alice, and presuming, in the absence 

of transcripts, that the evidence adduced at the hearings supports the 

superior court’s implicit finding that appointing James as Alice’s guardian 

and conservator would be contrary to her best interests, we conclude the 

court did not abuse its discretion by passing over James and instead 

appointing John as Alice’s guardian and conservator.

CONCLUSION

¶30 For the foregoing reasons, we affirm.