A Guide to Guardianship and Conservatorship
What is a guardianship?
A guardianship is the appointment by a court of an individual or entity to provide care and to make personal decisions for a minor or an incapacitated adult.
The person for whom a guardian is appointed is called a ward.
Generally, the ward is an adult who cannot make or communicate reasonable decisions for themselves to protect their own welfare because of some mental or physical condition, or because the ward is a minor.
Who may serve as a guardian?
An individual or an entity, like a private fiduciary (a person or an entity that holds a license to act as a guardian for someone and is paid to do so), may serve as guardian of a minor or of an incapacitated adult. In addition, the court can appoint the public fiduciary of the county to act as guardian for an incapacitated adult. The public fiduciary generally does not act as guardian for a minor.
For a minor, the court will appoint a person whose appointment will be in the best interest of the minor. A minor ward who is 14 years of age or older may nominate a guardian.
For an incapacitated person, any competent person may be appointed guardian. The law provides a list of priorities for appointment, although the court may appoint someone with a lower priority if such appointment is in the best interests of the ward. Someone already appointed as guardian in another county or state will have the highest priority. After that, the priority from highest to lowest includes the adult nominated by the ward (if the court believes the ward has the capacity to make an intelligent choice), a person nominated in the ward's power of attorney, the ward's spouse, an adult child of the ward, a parent of the ward or a person nominated in a Will, or any relative with whom the ward has lived for more than six months.
Before being appointed as guardian, the individual must provide background information to the court, such as any felony history, prior times the person acted as a guardian for someone, and other information.
How is a guardian appointed?
A guardian may be nominated by a Will, or by any interested person who files a petition with the court for appointment of a guardian. An incapacitated adult, or any person interested in that incapacitated adult's welfare, may petition the court for a finding of incapacity and the appointment of a guardian. Forms for obtaining the appointment of a guardian can be downloaded at www.superiorcourt.maricopa.gov by clicking on "self-service center" and on "forms".
Notice of the time and place of the hearing must be personally served on the potential ward and given to other persons specified by statute, who include the alleged incapacitated person's spouse, parents and adult children, anyone currently serving as guardian or conservator or who has care and custody of the person, anyone who has asked to be notified and, if there is no one to give notice, then the closest relative shall be given notice.
An adult ward who is named in a guardianship petition must be represented by an attorney. The ward may use an attorney with whom the ward has an established professional relationship or an attorney will be appointed by the court. The court must also appoint a physician and court investigator who must submit reports to the court before the hearing date, after interviewing the potential adult ward. The potential ward is entitled to be present at the hearing.
For a minor guardianship, there is no need for a physician's report, and no attorney is appointed for the minor. In addition, for this type of guardianship, the minor's parents must consent to the appointment of a guardian for their minor child.
In certain circumstances, the court may appoint a temporary guardian for a specific purpose and for a specified time period.
What are the duties of a guardian?
A guardian has powers and responsibilities similar to those of a parent. The guardian may make personal decisions for the ward relating to living arrangements, education, social activities, and authorization or withholding of medical or other professional care, treatment, or advice. The guardian must always make decisions that are in the best interests of the ward. The guardian must always make sure that the ward is living in the least restrictive environment in which the ward can remain safe.
A guardian must submit a written report to the court annually on the date of the guardian's appointment. The report must include information on the health and living conditions of the ward and a current physician's report.
Can appointment of a guardian be avoided?
Often if the adult has executed a valid Health Care Power of Attorney, Mental Health Care Power of Attorney, and Living Will (for end of life decisions), a guardianship might not be needed. These forms can be found at: www.azag.gov under "Life Care Planning" tools. An adult can only appoint an agent under a power of attorney if the adult is competent to understand the power of attorney document. However, even if an adult completes the powers of attorney and living will, he or she could still be subject to a guardianship proceeding. A guardianship petition can be filed with the court if someone believes the person nominated as the heath care power of attorney agent is not acting in the best interests of the incapacitated person.
What is a conservatorship?
A conservatorship is a court proceeding to appoint an individual, or an entity like a private fiduciary, to manage the financial affairs of a minor or an incapacitated adult who is unable to manage his or her own property or financial matters.
The person for whom a conservator is appointed is called a protected person.
Who may serve as conservator?
An individual or an entity, like a private fiduciary, may be appointed as the conservator for a protected person. In addition, the court can appoint the public fiduciary of the county to act as guardian for an incapacitated adult or a minor.
Before being appointed as conservator, the individual must provide various background information to the court, such as any felony history, prior times the person acted as a conservator for someone, and other information.
How is a conservator appointed?
A petition for the appointment of a conservator is filed with the court. The petition may be filed by the person to be protected or by any interested person.
Notice of the time and place of the hearing must be personally served on the person to be protected and given to other persons specified by statute, with the same priorities as notice in a guardianship matter.
The adult to be protected must be represented by an attorney. The adult to be protected may use an attorney with whom the person to be protected has an established professional relationship or an attorney will be appointed by the court. The court must also appoint a physician and court investigator who will submit a report to the court before the hearing date, after interviewing the potential adult protected person. The person to be protected is entitled to be present at the hearing.
For a minor conservatorship, there is no need for a physician's report, and no attorney is appointed for the minor. In addition, the minor's parents can be appointed as conservator.
The court may also appoint a conservator for a single transaction or a limited purpose. The limitation is noted on the letters of appointment.
What are the duties of a conservator?
A conservator has the powers and responsibilities of a fiduciary. A conservator is held to the standard of care applicable to a trustee: which is that of a prudent person dealing with the property of another. A conservator must keep detailed and accurate records of all of the financial information of the protected person.
Within ninety days of appointment, the conservator must file with the court an inventory of the estate of the protected person. Annually, on the anniversary of the date of appointment, the conservator must file with the court an accounting of the administration of the estate that accurately reflects every financial transaction that occurred during the accounting period.
A conservator has power to invest funds of the estate and to distribute sums reasonably necessary for the support, care, education or benefit of the protected person. The conservator must pay from the estate all just claims properly presented against the estate and the protected person.
The conservator may use a protected person's money only for the benefit of the protected person. A conservator may not make gifts of the protected person's assets unless the court has issued an order that authorizes the gifts. A conservator cannot use the protected person's money to pay the conservator's bills.
If a conservator is acting improperly, an interested person may file a petition with the court asking the court to either replace the current conservator or ask that the court seek more information from the attorney for the incapacitated person, from the court investigator, or from a third party.
Can appointment of a conservator be avoided?
Sometimes a validly-executed Durable Financial Power of Attorney will enable the named agent to manage the assets of the incapacitated adult. If the incapacitated adult has a trust, a conservator may only need the limited power to retitle the assets to the name of the trust, so the trustee can then manage the assets for the benefit of the incapacitated person. Often, a financial institution will require that that institution's Power of Attorney form be used for an agent to manage an incapacitated person's account. An adult can only appoint an agent under a power of attorney if the adult is competent to understand the power of attorney document.