Some Thoughts About Guardianship and Conservatorship in Arizona

NOVEMBER 14, 2011 VOLUME 18 NUMBER 39
Let’s talk about guardianship and conservatorship proceedings. Before we do, though, let’s remember a couple of important principles:

  1. We only know about Arizona guardianship or conservatorship. Well, OK — we might know a thing or two about other states’ rules and procedures — but we only practice in Arizona. Our observations are not universally applicable. They may not even be universally applicable inside Arizona’s borders.
  2. As always, we simply can’t give specific case-based legal advice here, and you should not rely on this newsletter (or anything you read online or in books) to resolve your case. This is big-picture stuff. We can and do write about how the system works, what the rules look like, and what you might expect if you are involved in a guardianship and/or conservatorship matter in Arizona. Don’t expect to print out our articles, take them to court and argue with the judge, though. She won’t appreciate it, and neither will we. Plus it won’t work. Get good legal advice.
  3. One thing we’ve learned from years of law practice: people think they understand their own cases, but they get blinded to the nuances (or maybe they aren’t told everything about the contrary evidence or opinions) and tend to overgeneralize. We don’t think that means they are stupid, or liars — they are just trying to put the best face on their case, and that’s human nature. But it also means that if you say “aha — he hit the nail on the head and that’s exactly what my worthless brother is trying to do” we’d be likely to tell you (if we were your lawyer): “slow down. It’s not that clear.”
  4. We have written a lot about guardianship and conservatorship. Here’s one of our better (and most comprehensive) articles, a White Paper on guardianship and conservatorship. But it’s a difficult and confusing topic, with lots of information — and misinformation — out there.

Disclaimers aside, let’s talk about guardianship and conservatorship. Let’s start with some definitions of terms.

In Arizona, the word “guardianship” is applied to the court proceedings instituted to acquire legal control over another human beings’ person. In general terms, a guardian is authorized by the court to make placement and health care decisions for that other human being. Not every state uses the same word. Not every state has the same process to get a guardian (or whatever they call the office) appointed. But every state does have some kind of court proceeding in which a person can be appointed to manage the health care and living arrangements of another person.

In Arizona, the word “conservatorship” is applied to the court proceedings instituted to acquire legal control over another human beings’ finances. A conservator usually is authorized by the court to handle checking accounts, real estate, brokerage accounts, businesses, vehicles, horses, airplanes, family photographs, oil and gas leases — you name it. Just to keep the confusion level high, not every state calls this type of court-appointed person a conservator — some, in fact, call them guardians. But in Arizona, the person managing property and finances is a conservator.

Neither guardians nor conservators are “powers of attorney.” In point of fact, powers of attorney are pieces of paper, not people at all. But now we quibble. The person named to manage your property and/or your person in a power of attorney is properly called your “agent” or your “attorney-in-fact.” A guardian or conservator is neither an agent nor an attorney-in-fact. They usually have authority over agents and attorneys-in-fact, though it may require separate court action to make that clear, and it may be possible for the court to determine that the agent (or attorney-in-fact, if you prefer hyphenated names) still has authority even after appointment of a guardian and/or conservator.

Who can have a guardian appointed? Someone who is incapacitated. Their incapacity can be based on their age (minors — those under age 18 — are automatically incapacitated under Arizona law unless they are “emancipated”) or their circumstances. Generally speaking, parents are the natural guardians of their minor children, so they do not need to go to court to secure guardianship. The same is not true for any class of adults. So if your 18-year-old child has a lifelong disability that makes him unable to make responsible decisions, you do not automatically shift from being his natural guardian at 17 to being his legal guardian at 18. A court proceeding is necessary. Same thing if your husband or wife becomes incapacitated — you may need court proceedings to become guardian (if there is no power of attorney and there are things that need to be taken care of). “Incapacity” for adults requires a court showing of (a) a mental, medical or other condition that (b) affects the ability of the person to make and communicate responsible personal decisions and (c) makes it difficult or impossible for them to provide their own food and shelter without assistance. It is also necessary to show that (d) the appointment of a guardian will actually help accomplish that goal.

Appointment of a conservator is based on similar, but slightly different, grounds. First, minority is always considered a legally disabling condition, but parents are not the natural conservators of their children in the way that they are natural guardians. That means if a minor child comes into money, even if they live with both parents and all are harmonious and responsible, there is no way to manage that money without going through the conservatorship process. If an adult becomes unable to manage their money in order to prevent its waste or dissipation, they may have a conservator appointed, as well. Frankly, the definition of when a conservator can be appointed is a great deal less precise than that for guardianships, which can sometimes lead to problems.

An important reality for family members and friends to understand: if a guardianship and/or conservatorship proceeding is initiated, the court has been invoked and will not later simply step aside to let concerned — even appropriately concerned — family members take over. Once the courts are involved, they tend to stay involved.

That means that the cost of securing guardianship and conservatorship can be high. In Arizona, a lawyer is automatically appointed to represent the person who is alleged to be in need of a guardian or conservator. A medical report is required. A court-appointed investigator must go to the residence, conduct an investigation and file a report. There are significant court costs involved. Plus the process is complicated enough that the petitioner is almost always going to hire an attorney. That attorney’s bill is likely to approach half the total cost of getting the guardianship or conservatorship set up.

Much has been written, spoken and broadcast in recent years about the high cost of guardianship and conservatorship. The natural tendency of the system has been to make it more difficult to get guardians and conservators appointed, and to require them to provide more information, more frequently. Though that may be a positive development, it has the (presumably unintended) effect of making the process not only more difficult, but also more expensive.

So — guardianship and conservatorship can be difficult, expensive, even ineffective. Not always, of course, but there is a possibility and it proves to be the case too often. What can beleaguered family members do?

Most lawyers practicing in the field spend the first portion of any contact with a new client talking about how to avoid guardianship and conservatorship proceedings. Did your family member sign a health care power of attorney, a financial power of attorney, a living will, a living trust? Are there other ways to get done what needs to be done? What bad things will happen if we (that is, the family and the lawyers acting together) simply do not file a guardianship or conservatorship proceeding, even if one is warranted? Are there ways to get agreement from all the family members in advance, in order to hold down legal costs?

One important concern, at least in the case of adult guardianship and conservatorship: we will ultimately need to be able to prove that your family member has a medical, mental, emotional or other problem that prevents them from making their own personal or financial decisions. We will need medical evidence. Have you spoken with your family member’s physician, or psychologist, or other member of their treatment team? Can you get a letter from that person describing diagnosis, prognosis and any functional limitations? Without that, we may not be able to proceed. With that in hand, though, the process may be significantly streamlined.

Getting guardianship or conservatorship can be expensive, emotionally wrenching, and sometimes even ultimately unsatisfying. Sometimes, however, it is absolutely necessary. We just need to be sure you are prepared for the cost, the procedures, the limitations, and the possibilities in this type of legal proceeding. That’s why you hire a lawyer, after all.

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12 Responses

  1. I’m guardin of my adult SMI son I’ve had durable power of attorney I moved to Santa cruz co & no one here would except these legal documents , not his mental health care , not the judge,I have had these powers for 11 yrs, then told I had to be guardin, why wouldn’t these government agency’s accept them? Do they have any power here in Santa cruz county az?

  2. Nancy:
    It’s impossible to answer your question without a review of the actual documents and circumstances. In general, though, if you have been appointed guardian by a court in another jurisdiction, and that guardianship is still in effect, you should be able to get it recognized in Arizona. It sounds like you need to hire an attorney.

    Robert B. Fleming
    Fleming & Curti, PLC
    330 N. Granada Ave.
    Tucson, Arizona 85701
    520-622-0400

  3. Jane

     /  July 22, 2016

    Hello. I have a question as to why there would be a conservator appointed to open a restricted account of $1,700? In the situation here, the conservator is the mother of the minor child.

  4. Jane:

    At least in Arizona (the rules and practice may be different elsewhere) a conservator is appointed in order to actually open the court-controlled bank account, secure proper signatures and file with the court. Since the account is restricted, the conservator doesn’t have any authority to directly manage the account except with court approval — but that does mean the conservator’s bond can (usually) be waived. It doesn’t matter too much who acts as conservator in such a case, since only the judge can authorize release of the funds (even when the minor turns 18 the release does not happen automatically).

    I hope that helps.

    Robert Fleming

  5. Jane

     /  July 23, 2016

    It helps, but I suppose I’m confused why someone’s parent would be court appointed in a situation with little money involved. I know there could be many scenarios in which this would be required, but is there a way for you to judge based on the information, as to why this occurred?

  6. Conrad

     /  September 15, 2016

    Hello, my adult nephew has schizophrenia, my sister is older and her health is deteriorating she is his primary caregiver…he receives SSI. What are some options to have him cared for upon her passing??

  7. You might ask your sister to contact a lawyer in her community. That lawyer might have some ideas about available services, and would be in a better position to assess her resources and how to help your nephew after your sister’s death. Sometimes there aren’t very good alternatives available, sadly.

  8. Kingston

     /  November 13, 2016

    I am a conservator and a guardian; will any decisions I make concerning my husband’s financial well-being need to be reviewed by his children?
    As an example, we own the house jointly. If I sell him his half of the house’s fair market value, do I have to inform his children that I am selling his half?
    Reason to sell is to have enough money for his medical care and attention in the retirement home.

  9. You should talk with the lawyer who represented you in the guardianship and conservatorship proceedings. If you did not have a lawyer, now would be a good time to speak with one. The answer will depend not only on the state where you live, but also the particular facts of your (and your husband’s) situation.

    Robert Fleming
    Fleming & Curti, PLC
    Tucson, Arizona

  10. Gwen

     /  January 19, 2017

    I have a few question.
    My brother is on Arizona Long Term Care/disability and on Access.
    His step daughter was being paid as his caregiver. However did not do a lot of things she should have been doing. Nor reporting issues he was having.
    My brother is now in the hospital in an induced coma. My brothers son is saying he’s going to court to get guardianship over my brother and force him to move to Prescott. My brother has 5 siblings. His son has only told me about doing this. I would like to know what our rights are? I feel my brother son is not making good decision. Does my brothers step daughter have rights? I think his son may also have a felony on his record too? I’m sorry for so many questions just need to know if there is anything we can do as I know my brother would not want some of these things to happen to him.

  11. Gwen:
    You’ve asked too many questions, and with too much personal information, for an answer here. Talk with a lawyer about your brother and the guardianship process.
    One general rule: notice must go to parents (if living), spouses (if any) and children. Siblings are not automatically entitled to notice under Arizona law — but they might be able to demand and receive notice.
    Robert B. Fleming

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