What is a Guardianship and Conservatorship?

These are legal proceedings that take place in the probate division of the Superior Courts of Arizona. Only the Court may appoint a legal Guardian and/or Conservator.

What is the Guardian’s responsibility?

In general, a Guardian has the duty and authority to make the personal and health care decisions for an incapacitated adult, similar to that of a parent over their minor child. The Guardian’s authority may be full or limited, temporary and/or permanent, with or without inpatient mental health authority, or any combination thereof as required to meet the demonstrated needs of the incapacitated adult in the least restrictive means possible. To appoint a Guardian, the Court must find that the subject individual is “incapacitated”, defined by law as unable to make responsible decisions concerning their person, due to a mental or physical disability, as well as chronic drug use or intoxication.

What is the Conservator’s responsibility?

A Conservator handles financial matters for a person who is determined by the Court to be “in need of protection,” meaning the person is an adult who is unable to manage their affairs effectively due to mental or physical disability, as well as chronic drug use or intoxication, or a minor (under age 18) and has property which will be wasted or dissipated without proper management, or protection is necessary to make funds available for the person’s support, care, and welfare. Similar to Guardianship, a Conservator’s authority will be either be full or limited, temporary and/or permanent, as required to provide for the person in need of protection.

When would a Guardianship be necessary?

By law, if an adult is unable to express their medical treatment wishes for any reason (e.g., serious illness, injury, advanced age) an Agent under their Health Care Power of Attorney may make the medical decisions. In the alternative, if there is no valid Health Care Power of Attorney state law designates a surrogate medical decision maker by a priority list, according to relationship with the incapacitated adult. Nevertheless, instances can arise that render advance planning ineffective and result in the need for a guardianship such as when a person is uncooperative or resistant to necessary care (e.g., dementia with behavioral issues, mental health disorder, etc.), the surrogate decision makers with equal priority disagree regarding medical, residential, and other needs, or inpatient mental health treatment is required and there is no mental health power of attorney in place. In other instances, the individual may have developmental disabilities and need a guardian appointed upon reaching age 18 to ensure continuing ongoing management of medical, personal, and educational needs.

When would a Conservatorship be necessary?

A Conservatorship is necessary when there is no other legal alternative available to handle the assets, income, and financial matters (e.g., Durable Financial Power of Attorney, Trust, Representative Payee) for the person in need of protection. It should be noted that unlike with medical decision making there is no statutory surrogate that can handle financial matters for a person in need of protection- not even a spouse. Therefore, Conservatorship is often required when someone did not have their estate plan in order prior to disability or incapacity. However, even if with estate planning documents in effect there can be situations when a Conservatorship is necessary to protect a vulnerable adult from third party exploitation or their own mismanagement of assets.

Do you need an attorney?

These are complex legal proceedings with detailed procedures required to seek appointment and once appointed, there are many responsibilities and required court filings. Additionally, by law the court will appoint an attorney to represent the person who is the subject of the guardianship/conservatorship to protect their rights under the proceedings. For these reasons, it is always best to have experienced counsel to explain all of the options available to achieve best outcomes and guide you through the entire process. In most instances the assets of the person under guardianship/conservatorship may be used to pay the guardian’s/conservator’s legal fees and costs.

What is the process to be appointed Guardian or Conservator?

There are many pleadings to be filed, including a Health Professional’s Report completed by a treating physician or registered nurse supporting the need for a guardianship. To obtain the additional authority to consent to inpatient mental health or psychiatric treatment, the person seeking appointment as guardian must demonstrate a current, or, at least, foreseeable, need for such treatment as supported by the report of a physician, psychologist, or psychiatrist. Once the pleadings are filed, the Court will assign an attorney to represent the person for whom guardianship/conservatorship is sought and schedule a hearing. Notice of the hearing must be provided to all interested parties in according with state law. At hearing, petitioner must demonstrate the need for Guardianship/Conservatorship and that it is in the best interests for their appointment, as the case may be.

What happens after appointment?

The Court will issue an Order and Letters evidencing appointment. With guardianship, there are annual filings at a minimum. With Conservatorship, unless waived by Court there are many filings required within the first few months (e.g., Budget and Sustainability Report, Initial Inventory, Credit Report, Proof of Fiduciary Bond and/or Restrictions from financial institutions, if relevant, etc.) and then annually thereafter, at a minimum, accountings which demonstrate all receipts and disbursements, assets, and their values. With Conservatorship, accounts and assets will also need to be retitled to the Conservatorship. While every situation is different, serving as Guardian and/or Conservator carries significant responsibility and takes time and attention to detail.