Guardianships & Conservatorships

 

Appointments of Guardians and Conservators

Appointing a guardian and/or conservator for someone is an intense process in Arizona.  A guardian/conservator is usually needed to protect your elderly parents or your children who are disabled.  However, it does not always have to be those relationships.  To understand the process, you must understand what the terms mean.  A guardian looks out for the well-being of an individual who lacks sufficient understanding to make responsible decisions concerning themselves.  The court refers to the incapacitated person as a ward.  A guardian should always do what is in the best interest of the ward and must take the ward's wishes into consideration when making those decisions (so long it does not endanger the ward). Generally, a guardian does not manage the ward’s money, but can if the ward’s total assets are less than $10,000.00.   On the other hand, a conservator manages a ward’s money and property, if he or she is unable to manage his or her affairs themselves and are in need of protection.  The court refers to the ward in this instance as a “protected person.”  A conservator must be very conscious and careful as to how the protected person’s money is spent.  The conservator has to provide the court with an accounting every year to show how monies were used.

 

Because the appointment of a guardian or conservator is taking away a person’s individual right's, the court needs strong evidence that an appointment is necessary.  Please keep in mind that many different parties can contest the appointment of a guardian or conservator, including the ward or protected person.  If the appointment is not contested, these are the steps the person seeking appointment will need to take:

 

• File a petition seeking appointment with the court and give notice to proper parties;

• complete the mandatory training;

• file an affidavit regarding his or her background – sort of like a background check;

• interview with the court investigator and provide any information requested;

• discuss the appointment with the court-appointed attorney for the ward/protected person;

• provide the court with a report completed by a medical professional that will state whether a guardian/conservator is needed;

• attend a hearing and testify as to why a guardian is needed and why he or she should be appointed;

• notifies others of his or her appointment and begin assisting the ward/protected person in a way that complies with the court’s orders and Arizona law.

 

However, if an appointment is contested, the court will require an evidentiary hearing on the matter to resolve whether or not a guardianship/conservatorship is necessary and which candidate is best suited to serve the ward/protected person.  In some cases, the court will allow the appointment of a public or private fiduciary to serve as the guardian/conservator.  Here are some of the factors that will be evaluated by the court:

 

• Does the court investigator believe a guardianship/conservatorship is necessary?

• Who does the court investigator believe is best suited to be appointed?

• Does the ward/protected person believe an appointment is necessary?

• Who does the ward/protected person believe is best suited to be appointed?

• What is the size of the estate?

• What are the ward's needs?

• Is the proposed appointee qualified to serve?

• Does the proposed appointee have a negative financial or criminal history?

• Has the proposed appointee ever misappropriated the ward's/protected person's monies?

 

Contested appointments can be expensive and tear apart families.  While guardianships/conservators are necessary, it is important to go about petitioning the court for the appointment with a certain tact.  Remember, if you are not successful in your appointment, your legal fees are not paid for by the ward's estate.  Should you have any questions regarding your appointment as a guardian or conservator, call me for a free consultation.

 

Guardianship and Conservatorship Administrations

Once a guardian or conservator is appointed, there is much more work to be done. The guardian is required to be there for the ward.  The guardian must arrange for the ward to have medical treatment and oversee the overall well-being of the ward.  The guardian is responsible for filing the annual guardianship report as well.

 

Conservators, on the other hand, have much more work than a guardian.  A conservator must prepare a budget, an inventory, the first accounting and annual accountings thereafter.  Also, the conservator will usually have to restrict the protected person's bank accounts and real estate.  Because the conservator is responsible for the protected person's finances, the conservator has an ongoing duty to keep track of all monies spent from the protected person's estate.  It can be overwhelming.

 

Should you have any questions about your obligations and duties regarding your appointment as a guardian or conservator, call me - I can help.

 

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