IN THE

ARIZONA COURT OF APPEALS

DIVISION TWO

IN RE THE GUARDIANSHIP AND CONSERVATORSHIP OF:

ROBERT SOMMER

No. 2 CA-CV 2016-0111-FC

Filed December 12, 2016

Appeal from the Superior Court in Pima County

No. GC20150525

The Honorable Charles V. Harrington, Judge 

MOTION TO DISMISS DENIED; REMANDED

COUNSEL

Laber & Laber, PLC, Tucson

By Edward Harris Laber and Edward Jerome Laber

Counsel for Appellant

Phillips, Moeller & Conway, PLLC, Tucson

By Katrina M. Conway

Counsel for Appellees

OPINION

Presiding Judge Howard authored the opinion of the Court, in which 

Judge Espinosa and Judge Vásquez concurred. 

H O W A R D, Presiding Judge:
IN RE THE GUARDIANSHIP & CONSERVATORSHIP

OF ROBERT SOMMER

Opinion of the Court

2

¶1 Robert Sommer appeals from the probate court’s order 

finding that he was an incapacitated adult under articles 3 and 4 of

title 14 of the Arizona Revised Statutes and appointing a guardian and 

a conservator. The conservator, Ruth Considine, and the guardian, 

Martha Sommer, (appellees) have moved to dismiss the appeal 

arguing that this court lacks appellate jurisdiction because the order 

was not final. We conclude the order is substantively appealable, but 

we do not have jurisdiction because the order lacks Rule 54(c), Ariz. 

R. Civ. P., language. Accordingly, we deny the motion to dismiss, but 

remand and re-vest jurisdiction in the probate court to allow either 

party to request from the court, and the court to consider adding, 

language pursuant to Rule 54(c).

Factual and Procedural Background

¶2 Sommer is an eighty-nine-year-old man who lived at 

home with a long-term care giver. He experienced some medical 

problems in 2010 and executed a durable power of attorney to his 

daughter, Ruth. After additional issues arose, Ruth, along with 

Sommer’s other children, became concerned about their father’s 

decision-making ability and level of cognitive function. They 

petitioned the trial court to grant a conservatorship to Ruth and a 

guardianship to Sommer’s other daughter, Martha.

¶3 The probate court conducted proceedings pursuant to 

title 14, chapter 5, and, on May 11, 2016, held a bench trial to 

determine the issue of incapacity and the propriety of granting the 

guardianship and conservatorship. At the conclusion of the trial, the 

court found by clear and convincing evidence that Sommer was 

statutorily incapacitated and that the appointment of both a guardian 

and a conservator was necessary. See A.R.S. § 14-5101(1). The court 

appointed Ruth and Martha as conservator and guardian, 

respectively, and established an accounting schedule.

¶4 As part of the accounting process, the probate court 

ordered the conservator to file an annual accounting, a notice of 

hearing, and a petition for approval of accounting. The court also

required that the guardian annually file a report regarding Sommer’s 

health and welfare and send a copy of the report to Sommer and “any 
IN RE THE GUARDIANSHIP & CONSERVATORSHIP

OF ROBERT SOMMER

Opinion of the Court

3

other interested person as required” on the report form. The court 

also set a compliance hearing for September 2016, during which the 

court would review the accounting and the report, but noted that no 

additional notice of the hearing would be given, and “[n]o one need 

appear at [the] hearing.” Sommer timely appealed.

Jurisdiction

¶5 Appellees move to dismiss the appeal on the ground that 

we lack jurisdiction because the probate court’s May 11 order 1) was 

not a final judgment, but instead an interlocutory order, not subject to 

appeal under A.R.S. § 12-2101(A)(9) and 2) was not certified under 

Rule 54. “We, in turn, have an independent duty to confirm our 

jurisdiction over the appeal before us.” Anderson v. Valley Union High 

Sch., Dist. No. 22, 229 Ariz. 52, ¶ 2, 270 P.3d 879, 881 (App. 2012).

¶6 This court “is a court of limited jurisdiction and has only 

jurisdiction specifically given to it by statute.” Campbell v. Arnold, 121 

Ariz. 370, 371, 590 P.2d 909, 910 (1979). Section 12-2101 “provides 

when an appeal may be taken.” Musa v. Adrian, 130 Ariz. 311, 313, 

636 P.2d 89, 91 (1981). Before the adoption of the Uniform Probate 

Code (the UPC), § 12-2101 explicitly allowed an appeal from several 

different probate orders, including the granting of a guardianship and

a conservatorship.

1 1973 Ariz. Sess. Laws, ch. 75, §§ 4, 10. After the 

adoption of the UPC, it was amended to remove any specific list and 

instead allows an appeal: “From a judgment, decree or order entered 

 

1 Before the 1973 amendment, the management of an 

incapacitated person’s estate was termed an “administration.” 

See In re Estate and Guardianship of Vermeersch, 15 Ariz. App. 315, 316, 

488 P.2d 671, 672 (1971) (“A.R.S. § 14-815 provides as follows: ‘All 

proceedings of guardians, and the administration of estates of minors 

and incompetent persons, shall be had in accordance with, and shall 

be governed by, the laws relating to estates of decedents, except as 

otherwise provided by law.’”); former A.R.S. § 14-815 (1955). Before 

1973, § 12-2101(J) allowed an appeal from the grant or refusal to grant 

“letters . . . of administration, or of guardianship.” 1973 Ariz. Sess. 

Laws, ch. 75, § 10.
IN RE THE GUARDIANSHIP & CONSERVATORSHIP

OF ROBERT SOMMER

Opinion of the Court

4

in any formal proceedings under title 14.” 1973 Ariz. Sess. Laws, ch. 

75, § 10; see also § 12-2101(A)(9).

2

¶7 Title 14, A.R.S. §§ 14-1101 to 14-1401, governs, inter alia,

trusts, estates, and protective proceedings in Arizona. Title 14, 

chapter 5, articles 3 and 4 pertain to the appointment of a guardian or 

a conservator for an incapacitated adult. And § 14-1201(21), defines a

formal proceeding as a “proceeding[] conducted before a judge with 

notice to interested persons.” Thus, according to § 12-2101(A)(9), we 

have jurisdiction over a “judgment, decree or order” in a 

guardianship or conservatorship appointment matter, so long as that 

“judgment, decree or order” was entered by a judge after notice to 

interested persons.

¶8 The order challenged here was entered in a 

guardianship/conservatorship case after a proceeding conducted 

before a judge with notice to the parties. Therefore, it fits the statutory 

requirements. 

¶9 Additionally, the grant of a guardianship and 

conservatorship has a profound impact on the rights of a ward. Once 

found incapacitated and placed under a guardianship and 

conservatorship, the ward loses, or may lose, many constitutionally

protected rights; for example, the ward can be treated as a minor 

without the ability to make life decisions, including the decision to 

withhold life-saving treatment. A.R.S. §§ 14-5312(A), 14-5303(B).

And the ward loses the right to substantially control his or her own 

finances, A.R.S. § 14-5424, the ability to operate a motor vehicle, A.R.S. 

§ 14-5304.01, the right to serve on a jury, see Anderson v. State, 54 Ariz. 

387, 395, 96 P.2d 281, 285 (1939), and the right to vote, see A.R.S. §§ 14-

5304.02, among others, see §§ 14-5312, 14-5424.

3 If a ward were not 

allowed to appeal from the appointment of a guardian or conservator, 

 

2 We refer to the current numbering of § 12-2101 unless 

otherwise noted.

3We also note that in this case, the court ordered that Sommer 

“lacks the mental capacity to possess a firearm.” 
IN RE THE GUARDIANSHIP & CONSERVATORSHIP

OF ROBERT SOMMER

Opinion of the Court

5

these restrictions could exist until death without any opportunity for 

an appeal. 

¶10 Additionally, had the legislature intended to abrogate 

the right to appeal such a judicial determination when it amended 

§ 12-2101 to remove the language pertaining to guardianship and 

conservatorship, see 1973 Ariz. Sess. Laws, ch. 75, § 10, it could have 

done so explicitly, see Mathews ex rel. Mathews v. Life Care Ctrs. of Am., 

Inc., 217 Ariz. 606, ¶ 6, 177 P.3d 867, 869 (App. 2008) (plain language 

best indicator of legislative intent); see also In re Estate of McGathy, 226 

Ariz. 277, ¶ 13, 246 P.3d 628, 630 (2010) (“When the legislature 

adopted the UPC in 1973, it concurrently amended § 12-2101(J) to

remove this list of interlocutory appealable orders and instead simply 

allowed for appeals from a ‘judgment, decree or order entered in any 

formal proceedings under title 14.’”); 1973 Ariz. Sess. Laws, ch. 75, § 

10. We therefore conclude that the legislature did not intend to 

disallow an immediate appeal from an order establishing a 

conservatorship or guardianship and appointing a guardian or 

conservator.

¶11 But appellees cite Brumett v. MGA Home Healthcare, 

L.L.C., 240 Ariz. 421, 380 P.3d 659 (App. 2016), and two other cases 

interpreting § 12-2101(A)(9), to support their position that the May 11 

order is not final, and consequently that we lack jurisdiction. In 

Brumett, this court determined that orders are only appealable under 

§ 12-2101(A)(9) “when they are in the form of a final judgment or 

decree or, for an unsupervised administration, an order terminating 

a formal proceeding.” 240 Ariz. 421, ¶ 13, 380 P.3d at 667. As such, 

we determined that such judgments, decrees, or orders must be 

certified pursuant to Rule 54(c) or Rule 54(b) in order to be appealable. 

Id. In so deciding, we relied on two cases from our supreme court 

construing the language of § 12-2101(A)(9): Ivancovich v. Meier, 122 

Ariz. 346, 595 P.2d 24 (1979), and McGathy, 226 Ariz. 277, 246 P.3d 628. 

Id.

¶12 In Ivancovich our supreme court was considering a 

probate court order charging a decedent’s residuary estate with a 

portion of taxes on a life insurance payment. 122 Ariz. at 353, 595 P.2d 

at 31. The court concluded that “[a]n ‘order’ pursuant to [§ 12-
IN RE THE GUARDIANSHIP & CONSERVATORSHIP

OF ROBERT SOMMER

Opinion of the Court

6

2101(A)(9)]

4 means an order similar to a final judgment or decree 

entered in any formal proceedings under title 14.” Id. The court

distinguished these orders from non-appealable orders that deal with 

“a matter which may be properly disposed of in an appeal from the 

final decree” in a formal proceeding. Id. The court reasoned that such 

an order could be appealed “from the final decree distributing the 

estate” of the deceased. Id.

¶13 In McGathy, our supreme court again dealt with a 

decedent’s probate estate. 226 Ariz. 277, ¶ 2, 246 P.3d at 628-29. The 

court noted that § 12-2101(A)(9) allowed an appeal from “any order 

finally disposing of a formal proceeding in an unsupervised 

administration.” Id. n.2. “And, in supervised administrations, the 

final decree, or any interlocutory orders properly made final under 

Rule 54(b), are appealable under A.R.S. § 12-2101(B), which grants 

appellate jurisdiction over a ‘final judgment.’” Id. 

¶14 To explain this difference, the supreme court 

distinguished supervised and unsupervised administrations on the 

basis that “[a]n estate under supervised administration remains 

under the supervision of the trial court until a final decree is entered” 

whereas in an unsupervised administration “an order disposing of a 

formal proceeding may be the last one the court will enter; the estate 

will often thereafter be distributed without further court 

involvement.” Id. ¶¶ 10, 15. Thus, the court ruled that a final decree 

was unnecessary to appeal an unsupervised administration. Id. ¶ 17.

¶15 Appellees contend that an order establishing a 

conservatorship or guardianship and appointing a guardian or 

conservator is “never final,” but instead “[a]n order issued to the 

guardian or conservator under Title 14 is only final when being 

terminated by the Court or the terms of the order itself.” They argue 

that because “[a]ppointment orders are truly interlocutory orders 

 

4The supreme court considered A.R.S. § 12-2101(J), which was 

redesignated as A.R.S. § 12-2101(A)(9) without substantive 

amendment. See 2011 Ariz. Sess. Laws, ch. 304, § 1. For ease of 

reference we refer hereinafter to the current subsection.
IN RE THE GUARDIANSHIP & CONSERVATORSHIP

OF ROBERT SOMMER

Opinion of the Court

7

subject to further supervision and modification by the court” they are 

not separately appealable. They additionally argue, based on the 

cases cited above, that because this action “was not an unsupervised 

administration[,] . . . a final judgment or decree is required for 

jurisdiction.” And thus, appellees conclude, this court lacks 

jurisdiction to hear Sommer’s appeal.

¶16 But Ivancovich and McGathy both involve decedents’

estates and therefore are distinguishable from a 

guardianship/conservatorship proceeding. A supervised 

administration, as discussed in those cases, is “a single in rem 

proceeding to secure complete administration and settlement of a 

decedent’s estate under the continuing authority of the court which 

extends until entry of an order approving distribution of the estate 

and discharging the personal representative or other order 

terminating the proceeding.” A.R.S. § 14-3501 (emphasis added). The 

terms “supervised administration” and “unsupervised 

administration” are not used in articles 3 and 4 of chapter 5 which 

govern guardianships and conservatorships. Therefore, these 

opinions are not directly applicable to this case. 

¶17 Nevertheless, the reasoning of these cases supports our 

conclusion that we have jurisdiction here. Both cases extended 

jurisdiction to orders “similar” to a final judgment. Ivancovich, 122 

Ariz. at 353, 595 P.2d at 31 (“An ‘order’ pursuant to [§ 12-2101(A)(9)]

means an order similar to a final judgment or decree entered in any 

formal proceedings under title 14.”) (emphasis added); McGathy, 226 

Ariz. 277, ¶¶ 15-16, 246 P.3d at 631 (concluding appeal permitted in

context of unsupervised administrations, without “order formally 

terminating the estate”). A final judgment must resolve “all claims as 

to all parties.” Brumett, 240 Ariz. 421, ¶ 12, 380 P.3d at 667. But, 

“[b]ecause each proceeding in an unsupervised probate is considered 

independent of the other proceedings involving the same estate, there 

need be finality only as to that proceeding.” McGathy, 226 Ariz. 277, 

¶ 14, 246 P.3d at 631, quoting Schmidt v. Schmidt, 540 N.W.2d 605, 607 

(N.D. 1995).

¶18 Thus, “when the probate court has entered orders fully

determining the rights of the parties with respect to all claims raised 
IN RE THE GUARDIANSHIP & CONSERVATORSHIP

OF ROBERT SOMMER

Opinion of the Court

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in a [formal] proceeding, a final judgment exists.” Id., quoting Scott v. 

Scott, 136 P.3d 892, 899 (Colo. 2006) (alteration in McGathy). The 

McGathy court explained that “an order disposing of a formal 

proceeding may be the last one the court will enter . . . . It makes no 

sense to defer appellate review of an order terminating a formal 

proceeding until after a final decree that may never come.” Id. ¶ 15.

¶19 Here, the order is similar to a final judgment because it 

adjudicates the rights of the parties with regard to the issues raised in 

the guardianship and conservatorship petition. It was entered in an 

independent formal proceeding and will be the last order issued with 

regard to those issues, i.e., whether Sommer presently is in need of a 

guardian and conservator. Under Ivancovich and McGathy, that order 

is appealable. 

¶20 Appellees contend, however, that the “administration is 

supervised” leaving “open many questions.” In particular, they note 

that, under A.R.S. § 14-5304, the probate court “maintains an active 

role in the appointment and oversight of the guardian.” This 

administration, they reason, defeats appealability. But the order 

appointing a guardian or conservator ends the formal proceeding 

initiated by the petition with notice to the parties and a new phase, 

the administration of the guardianship/conservatorship, begins. 

See McGathy, 226 Ariz. 277, ¶ 13, 246 P.3d at 630 (A petition in a 

probate proceeding is the equivalent of a complaint in a civil action, 

and each individual petition gives rise to “a separate probate 

proceeding.”), quoting Ariz. R. Prob. P. 2(O) and (P) cmt. 

¶21 Furthermore, §§ 14-5303 and 14-5312 contain the

procedures and limitations applying to a probate court’s appointment 

and supervision of guardianship.5 It is true that the probate court 

may substitute a guardian or conservator, accept the resignation of 

guardian or conservator, and determine the ward is no longer

incapacitated, all under its own initiative, under A.R.S. §§ 14-5307, 

 

5For the limited purpose of this appeal, the procedures for 

establishing guardianship do not differ significantly from those for 

conservatorship. See A.R.S. §§ 14-5404, 14-5417.
IN RE THE GUARDIANSHIP & CONSERVATORSHIP

OF ROBERT SOMMER

Opinion of the Court

9

14-5415. But these sua sponte actions are still governed by Title 14. 

Section 14-5309, A.R.S., provides that notice to parties in guardianship 

proceedings requires that “[i]n a proceeding for the . . . substitution 

of a guardian of a ward or an alleged incapacitated person . . . notice 

of a hearing shall be given to” a number of statutorily designated

interested persons. Section 14-5313, A.R.S., titled “Proceedings 

subsequent to appointment” states that the probate court that 

appoints a guardian retains jurisdiction over “resignation, 

substitution, accounting and other proceedings relating to the 

guardianship including proceedings to limit the authority previously 

conferred on a guardian or to remove limitations previously 

imposed.” Thus, although the court may take actions pertaining to 

the guardianship and conservatorship on its own initiative, those 

actions constitute new formal proceedings with notice to interested 

persons. § 14-1201(21); see also In re Farson’s Estate, 77 Ariz. 196, 200,

269 P.2d 600, 602 (1954) (“The removal of a guardian without written 

notice is proper where he has been in court and defended himself.”). 

Furthermore, those statutes contemplate that many of these actions 

are also possible “[o]n petition of the ward or any person interested 

in the ward’s welfare.” 6 §§ 14-5307, 14-5415. Therefore such a 

petition, and the corresponding claims that arise, constitutes a new 

“formal proceeding,” which logically implies a distinct separation 

from the previous formal proceeding. The substantial rights of the 

parties are completely determined at the time the probate court issues 

the initial order finding incapacity and appointing a guardian or 

conservator.

¶22 Although no Arizona cases have decided this issue, the 

Tenth Circuit Court of Appeals considered when guardianship and 

conservatorship proceedings were final under Colorado law,7 finding 

 

6We note that the conservatorship statutes refer to a “protected 

person” rather than a ward. See, e.g., § 14-5415. We use the two terms 

interchangeably here.

7Both Colorado and Arizona based their probate codes on the 

Uniform Probate Code. See In re Estate of Becker, 32 P.3d 557, 563 (Colo. 

App. 2000); McGathy, 226 Ariz. 277, ¶ 5, 246 P.3d at 629. Further, the 
IN RE THE GUARDIANSHIP & CONSERVATORSHIP

OF ROBERT SOMMER

Opinion of the Court

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that the appointment of a guardian “definitively decided” “the claims 

raised in [the] petition[].” Mann v. Boatright, 477 F.3d 1140, 1146 (10th 

Cir. 2007). The Tenth Circuit reasoned that once the conservatorship 

and guardianship had been established “there was nothing further for 

the probate court to do in order to completely determine the rights of 

the parties,” and the order appointing a guardian and conservator 

and finding the ward incapacitated was a final order. Id., quoting

Scott, 136 P.3d at 898.

¶23 We agree with the Tenth Circuit that even though the 

probate court may issue new orders in the guardianship/

conservatorship administration, that does not change the fact that the

earlier formal proceeding resolved the matters currently at issue and 

the order was final. A verdict in a civil trial is clearly a final

appealable order, even though the court may overturn that verdict on 

its own initiative and order a new trial. See Ariz. R. Civ. P. 59(g) (trial 

court may order a new trial on its own initiative “for any reason for 

which it might have granted a new trial on motion of a party”).

¶24 An order appointing a guardian or conservator can be 

analogized to an unsupervised administration of a decedent’s estate 

in that, once a guardian or conservator has been appointed, the court 

has resolved all issues raised in the petition, has substantially 

determined the rights of the parties, and may not necessarily issue 

another order affecting those rights until the ward dies. Cf. § 14-3501

(supervised administration intended to continue until 

“administration and settlement of a decedent’s estate” is “complete”).

And in an unsupervised administration a party may appeal from any 

decision that disposes of a formal proceeding for precisely that 

reason. McGathy, 226 Ariz. 277, ¶¶ 15-17, 246 P.3d at 631. This 

rationale supports appealability.

¶25 For all these reasons, we conclude an appeal may be 

taken from an order establishing a guardianship or conservatorship.

But, because Rule 3(A), Ariz. R. Prob. P., incorporates the rules of civil 

 

case that the Tenth Circuit court relied on is cited favorably in 

McGathy. 226 Ariz. 277, ¶ 14, 246 P.3d at 630.
IN RE THE GUARDIANSHIP & CONSERVATORSHIP

OF ROBERT SOMMER

Opinion of the Court

11

procedure, such an order requires Rule 54(c) language to be 

appealable. Brumett, 240 Ariz. 421, ¶¶ 13, 34, n.4, 380 P.3d at 665 n.4, 

667, 672. Rule 54(a), defines a judgment as including “a decree and 

an order from which an appeal lies.” Such judgments cannot be 

considered final for the purposes of appeal unless they comply with 

Rule 54(c). 

¶26 In this case, because the probate court’s order concluded 

a formal probate proceeding and is therefore substantively 

appealable under § 12-2101(A)(9), it constitutes a judgment under 

Rule 54(a). Thus, for the order to be procedurally appealable, the trial 

court must certify that “no further matters remain pending” with 

regard to the guardianship and conservatorship petitions. Ariz. R. 

Civ. P. 54(c). The court did not certify the order as such, and we 

therefore lack jurisdiction.

Disposition

¶27 Based on the foregoing, we deny the motion to dismiss 

and re-vest jurisdiction in the probate court for a period of thirty days 

to allow either party to request the court to enter an order that 

complies with Rule 54(c). Brumett, 240 Ariz. 421, ¶ 34, 380 P.3d at 672; 

see Ariz. R. Civ. App. P. 3(b).

8 If the court enters such an order, the 

clerk of the superior court shall forward it to this court under a 

supplemental certificate. In any event, we will reinstate the appeal at 

the end of the thirty-day period.

 

8 Sommer additionally argues this court has jurisdiction 

pursuant to § 12-2101(A)(3), “From any order affecting a substantial 

right made in any action when the order in effect determines the 

action and prevents judgment from which an appeal might be taken.”

“The classic example . . . is a dismissal without prejudice after the 

statute of limitations has run.” See Garza v. Swift Transp. Co., 222 Ariz. 

281, ¶¶ 14-16, 213 P.3d 1008, 1011 (2009). Because we conclude the 

guardianship/conservatorship order is appealable, this subsection 

does not apply.