Conservatorships & Guardianships are related but different concepts. Conservatorships deal with the management of financial affairs while guardianships deal with legal decision making and the personal affairs of the protected person. Both are typically needed when a person is in a condition which makes them unable to do these for themselves. Common examples are those in comas, suffering with advanced Alzheimer's, and other serious debilitating injuries or illnesses.
A conservatorship is a court proceeding wherein protection is sought for a minor child or incapacitated adult who is incapable of managing his or her own financial affairs. The person for whom protection is sought is called the protected person. During the court proceeding, an individual or other fiduciary will be appointed to handle the financial affairs of the protected person. The person appointed to make financial decisions for the protected person is called the conservator.
To begin a conservatorship proceeding, a petition must be filed, and notice must be given to the protected person and others as listed under Arizona Revised Statute. Typically in conservatorship proceedings, the court will appoint an investigator to talk to the proposed protected person and issue a report to the court before the hearing. Also, a medical or psychological evaluation of the proposed protected person can be ordered. The person allegedly in need of protection has a right to be present at the hearing and an adult in need of protection is required have an attorney. The court can either appoint the attorney or the person may be represented by an attorney with whom they have a prior relationship. In child conservatorship proceedings an attorney is not required. The child’s parents can be appointed as conservator.
After a conservator is appointed, a special relationship exists between the conservator and the protected person. This relationship is a fiduciary relationship. And, as a fiduciary, a conservator will be held to a very high standard of care, such as that to which a trustee is held. See A.R.S. §§ 14-10804 and 10806. This is because the conservator will be entrusted to handle the property of someone else. A conservator who acts reasonably to carry out her appointment generally does not need court oversight. The powers of a conservator are limited to handling the protected person’s property and finances.
A guardianship is similar to a conservatorship in that a person is appointed to make decisions for someone else. A guardianship is the appointment of a guardian to make personal decisions for a minor or an adult who is incapacitated. Usually, the incapacitation of an adult is the result of a physical or mental illness. The person appointed to make decisions is called the guardian; the person for whom the guardian has been appointed is called the ward.
Individuals or private fiduciaries can serve as guardians. In child guardianship proceedings, the appointment of the guardianship must be consistent with the best interests of the child. In appointing a guardian, the court will be guided by priorities provided by law. For example, a person who has been previously nominated in the ward’s power of attorney may have higher priority than a relative whom the ward has not previously lived.
A.R.S. § 14-5209 sets forth the powers and duties of a guardian for a minor. As a general matter, the guardian has the same powers and duties as a natural parent would. A guardian will need to assist in carrying out the ward’s educational and social activities, in addition to doing things like authorizing medical care and treatment. And although the guardian must fulfill her obligations to the ward, the guardian generally does not have to provide for the ward using the guardian’s own money.
Conservatorships and guardianships can be complicated. When used for their proper purpose, these proceedings can provide much needed protection for those in need. But occasionally these proceedings are brought for an improper purpose. Such circumstances require a zealous defense. The experienced estate planning attorneys at Giordano Spanier & Heckele Law Firm can handle all aspects of Conservatorships & Guardianships proceedings. Call today for a consultation (520) 549-2276