What is a Guardianship in Arizona? A guardianship is a legal proceeding in which another is appointed to make personal and medical decisions (as opposed to finances) for an incapacitated adult, referred to as a “ward”.  In general, a guardian has the same powers, rights and duties respecting the guardian’s ward that a parent has respecting the parent’s unemancipated minor child, except that a guardian is not liable to third persons for acts of the ward solely by reason of the guardianship. In certain cases, a limited guardianship may be appropriate where the ward has capacity to make certain decisions, but not others. The Court may appoint a guardian when (1) the ward is incapacitated; (2) the appointment is necessary to provide for the ward’s demonstrated needs, and (3) the needs cannot be met by less restrictive means.  An individual is deemed incapacitated if they are “impaired by reason of mental illness, mental deficiency, mental disorder, physical illness or disability, chronic use of drugs, chronic intoxication or other cause, except minority, to the extent that he lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his person.”

What is Conservatorship in Arizona? A conservatorship is a legal proceeding in which another is appointed to handle financial matters for an adult during his or her lifetime when the adult is in need of protection, or for a minor until age of majority (18).  An adult will be determined in need of a conservator if (a) the person is unable to manage the person’s estate and affairs effectively for reasons such as mental illness, mental deficiency, mental disorder, physical illness or disability, chronic use of drugs, chronic intoxication, confinement, detention by a foreign power or disappearance, and (b) the person has property that will be wasted or dissipated unless proper management is provided, or that funds are needed for the support, care and welfare of the person or those entitled to be supported by the person and that protection is necessary or desirable to obtain or provide funds. In managing the protected person’s affairs, a conservator is to act as a fiduciary and shall observe the standard of care applicable to trustees, and will typically be required to post a fiduciary bond and submit annual accountings to the Court.

When is guardianship or conservatorship needed?  These proceedings become necessary when (1) you the individual is not able to make appropriate personal decisions for themselves or properly handle financial matters, and (2) there is no estate plan in place that appoints another to effectively help with decision-making and/or financial management, as the case may be.  A common example may be a person’s loss of capacity as they age to make personal decisions and handle financial matters due to illness, such as with stroke, dementia, Alzheimer’s disease, or other cognitive impairment.  However, a guardianship and/or conservatorship may also be necessary for younger individuals born with a developmental disability such as Cerebral Palsy, Down’s Syndrome, Autism, or other special need. At age 18, parents may need to seek the authority as legal guardian to continue to handle personal, medical and educational decisions for the adult child with special needs.  The need for guardianship and/or conservatorship may also occur if an individual suffers a brain injury or has a serious mental illness.  Typically, at least one medical professional, preferably a neuropsychologist, should be involved to determine extent of (in)capacity.

How can you avoid guardianship and/or conservatorship? Many people can plan for possible incapacity by having an estate plan in place, which involves executing powers of attorney and a trust.  These documents allow you to name someone as your agent to make decisions for you and avoid guardianship and conservatorship.  The health care and mental health care powers of attorney deal with the personal decision making that falls under guardianship.  The financial power of attorney and trust deal with financial decision making that falls under conservatorship.  Having these documents in place will help to avoid guardianship and/or conservatorship. In certain scenarios, however, having an estate plan in place will not be enough protection.  Sometimes, the person who signed powers of attorney (principal) still want to continue making their personal decisions even when they should not, such as with Alzheimer’s disease or dementia with behavioral issues, or family disagrees about the decisions being made by the Agent under powers of attorney.  Having effective and experienced legal counsel who have seen through these situations and types of cases is invaluable in helping to avoid legal proceedings or work through them, when needed, to help with the best possible outcome.  Contact our experienced attorneys for advice on how to best avoid Court, when possible, or alternatively use Court, when needed, to seek protection for your vulnerable loved ones.

-Letty Segovia, Attorney at Law