Guardianship and Conservatorship Elder Law
When a life change leaves an individual unable to properly make their personal or medical decisions or handle their financial matters, a Guardianship or Conservatorship may be the best way to keep that individual safe and financially sound. Guardianships and Conservatorships require appointment by a court. We have significant experience handling these matters and represent individuals, licensed fiduciaries, financial institutions, and governmental agencies as Guardians and/or Conservators. We routinely appear in all the courts in Maricopa County, and have handled matters in many other Arizona counties as well.
When an individual does not have the capacity to protect themselves or to make reasonable decisions about their personal matters, including medical treatment, they may benefit by having a Guardian appointed to protect them. Guardianship may be appropriate for an adult when he or she has declined physically or cognitively to the point that they are unable to care for themselves safely, when they are vulnerable to injury or abuse, or when they unreasonably resist efforts to keep them safe. In short, if the individual is unable to make reasonable or rational decisions concerning their well-being due to physical, cognitive, or other reason, the court will likely find them in need of a full Guardianship. However, if the individual is able to handle some areas of personal decision making, the court may appoint a Limited Guardianship. In every instance, the court will require that a doctor, psychologist or registered nurse state in writing that the individual is incapacitated.
When the court appoints a Guardian, then the individual becomes the Ward of the Guardian. The Guardian has the same responsibilities for the Ward that a parent has for their minor child. From that point forward, the Guardian is responsible for making the decisions that keep the Ward safe while fostering the most independence in the least restrictive living arrangement possible for their Ward.
A Conservator manages and protects an individual’s income, assets, and finances when the individual is not able to properly do so. This can occur for many reasons, such as brain injury, mental disorder, dementia, Alzheimer’s disease, developmental disability, drug or alcohol abuse or addiction, or other reasons. If the individual is wholly unable to handle their own financial matters and failed to put a Financial Power of Attorney or Trust in effect while still competent, without a Conservator there may be a circumstance in which no one will have access to his or her account(s) to pay bills. In addition, if the individual is vulnerable but still able to access his or her own accounts, he or she may stop paying bills, be victimized by telemarketing, be exploited financially by someone close to them, or may spend or give away significant amounts of money or assets without a good reason to do so and be in need of the protection of a Conservator.
Once appointed by the court, the Conservator is generally the sole party authorized by law to handle the protected person’s bank accounts, investments, real estate and all other assets and income. The Conservator is responsible for bill paying, payment of health care insurance premiums and co-pays, and any other financial needs that arise.
Unless otherwise ordered by the court, the Conservator must post a fiduciary bond for the value of the annual income and assets to which the conservator shall have access. The Conservator must file an initial inventory, credit report, budget and sustainability report within 90 days of their permanent appointment with the court. Thereafter, each year the Conservator must provide the court with a detailed accounting of the income and expenses of the protected person. The fiduciary duty and responsibility of the Conservator to the protected person and the court are time-consuming and detailed; Conservators should seek advice of experienced counsel on an ongoing basis to ensure all court deadlines and fiduciary obligations are met timely and properly performed.