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Guardianships and Conservatorships in Arizona

 

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Arizona Guardianships and Conservatorships

Guardianships and conservatorships for adults often go together, but they deal with different situations and needs.  In Arizona, a guardian is appointed to make decisions concerning health and welfare for an incapacitated adult.  A conservator handles and makes decisions concerning an incapacitated person’s or child’s finances and assets.  The same person may simultaneously serve as guardian and conservator.

Both involve proceedings before the Court to request the appointment of the representative to obtain the legal authority to make decisions for the person.

Typically, a guardianship and/or conservatorship is not necessary if the incapacitated person has someone else who is legally authorized to act on behalf of the incapacitated person.   For example, a guardianship or conservatorship may be unnecessary if the incapacitated person appointed an agent to make healthcare and/or financial decisions under a valid power of attorney.  However, even if the person signed a power of attorney, sometimes the family has disputes or disagreements over whether the power of attorney is valid or whether the agent is making the right decisions or abusing the power.  Sometimes, third-parties, such as hospitals and banks, refuse to honor a power of attorney.  In those and other cases, a guardianship, conservatorship or other proceeding may still be appropriate despite the power of attorney.

Below is a brief explanation of Arizona adult guardianships and conservatorships.  Whether your matter involves a guardianship and/or conservatorship, we are here to try our best to help.

Berk Law Group, PC is available to try to assist you in handling contested and uncontested guardianships and conservatorships in Arizona.  Guardianships for minors are handled slightly differently.  We regularly handle uncontested guardianship and/or conservatorship matters on a flat fee basis, where we receive a fixed amount (usually no more than $4,000, plus costs) to prepare and file the necessary paperwork to request the appointment and to attend the initial hearing.  If the matter becomes contested or other issues arise, we would then typically charge hourly based on the time worked on your matter.

Arizona Adult Guardianships

In Arizona, a guardian may be appointed for an adult who is “incapacitated.”  An adult is “incapacitated” when the person “is impaired by reason of mental illness, mental deficiency, mental disorder, physical illness or disability, chronic use of drugs, chronic intoxication or other cause, except minority, to the extent that he lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his person.”  A.R.S. § 14-5101.  A person does not need to be entirely unable to communicate or to make decisions in order to be deemed “incapacitated” for purposes of a guardianship.

A guardianship may be limited, meaning that the guardian’s powers are limited to specified matters.  For example, a guardian could be appointed for the limited and specific purpose to consent to medical treatment, arrange for outpatient counseling or make decisions concerning living arrangements.  Or, a guardianship may be general.

Arizona Guardian’s Duties and Powers

A general guardian “has the same powers, rights and duties respecting the [incapacitated person] that a parent has respecting the parent’s unemancipated minor child, except that a guardian is not liable to third persons for acts of the ward [the incapacitated person] solely by reason of the guardianship.”  A.R.S. § 14-5312.  A general guardian may decide, among other things, where the person is going to reside, make decisions concerning “care, comfort and maintenance . . .  [and] training and education.”  If the guardian wants the power to place the person in an in-patient mental health facility, such power must be specifically requested and ordered by the Court; otherwise, the guardian does not have the authority to arrange for in-patient mental health care.

The appointment of a guardian may suspend the incapacitated person’s driver’s license and right to vote.  The Court may preserve those rights and allow the person to drive and/or vote if it finds that the person may competently do so notwithstanding his or her incapacity.

Once appointed, the guardian has various duties.  Most importantly, the guardian must consider and try to abide by the incapacitated person’s wishes.  If, for example, the person made it known that she wants to live in her own home, not an assisted living facility, the guardian would need to attempt to fulfill that objective.  Of course, the guardian would also need to consider other factors, such as cost, available financial resources and safety.

The guardian is also required to implement the least restrictive means to take care of the incapacitated person’s needs.

Unless waived by the Court, a guardian must file a report with the Court each year.  This is just a brief summary.  Guardians appointed in Arizona have other duties and powers.

Learn More About Arizona Adult Guardianships

Arizona Conservatorships

A conservator may be appointed in Arizona when the following two criteria are met: (1) the person is unable to manage his or her assets and financial affairs because of, for example, “mental illness, mental deficiency, mental disorder, physical illness or disability, chronic use of drugs, chronic intoxication, confinement, detention by a foreign power or disappearance [and] (2) the person has property that will be wasted or dissipated unless proper management is provided, or that funds are needed for the support, care and welfare of the person or those entitled to be supported by the person and that protection is necessary or desirable to obtain or provide funds.”  A.R.S. § 14-5401.

A conservatorship may be general, limited or for a single transaction.

Arizona Conservator’s Powers and Duties

Subject to certain limitations, so long as he/she acts reasonably to accomplish the purposes for the conservatorship, a general conservator in Arizona has numerous powers, including:

  • to invest and reinvest funds of the estate as would a trustee;
  • collect, hold and retain assets of the estate including land in another state, until, in the conservator’s judgment, disposition of the assets should be made. (Assets may be retained even though they include an asset in which the conservator is personally interested.)
  • Receive additions to the conservatorship estate.
  • Continue or participate in the operation of any business or other enterprise.
  • Acquire an undivided interest in an estate asset in which the conservator, in any fiduciary capacity, holds an undivided interest.
  • Deposit estate funds in a state or federally insured financial institution including one operated by the conservator.
  • Acquire or dispose of an estate asset including land in another state for cash or on credit, at public or private sale, and manage, develop, improve, exchange, partition, change the character of or abandon an estate asset.
  • Make ordinary or extraordinary repairs or alterations in buildings or other structures, demolish any improvements and raze existing or erect new party walls or buildings.
  • Subdivide, develop, or dedicate land to public use, make or obtain the vacation of plats and adjust boundaries, adjust differences in valuation on exchange, partition by giving or receiving considerations and dedicate easements to public use without consideration.
  • Enter for any purpose into a lease as lessor or lessee with or without an option to purchase or renew for a term within or extending beyond the term of the conservatorship.
  • Enter into a lease or arrangement for exploration and removal of minerals or other natural resources or enter into a pooling or unitization agreement.
  • Grant an option involving disposition of an estate asset, or take an option for the acquisition of any asset.
  • Vote a security, in person or by general or limited proxy.
  • Pay calls, assessments and any other sums chargeable or accruing against or on account of securities.
  • Sell or exercise stock subscription or conversion rights and consent, directly or through a committee or other agent, to the reorganization, consolidation, merger, dissolution or liquidation of a corporation or other business enterprise.
  • Hold a security in the name of a nominee or in other form without disclosure of the conservatorship so that title to the security may pass by delivery, but the conservator is liable for any act of the nominee in connection with the stock so held.
  • Insure the assets of the estate against damage or loss, and the conservator against liability with respect to third persons.
  • Borrow money to be repaid from estate assets or otherwise, advance money for the protection of the estate or the protected person, and for all expenses, losses, and liability sustained in the administration of the estate or because of the holding or ownership of any estate assets, and the conservator has a lien on the estate as against the protected person for advances so made.
  • Pay or contest any claim, settle a claim by or against the estate or the protected person by compromise, arbitration, or otherwise and release, in whole or in part, any claim belonging to the estate to the extent that the claim is uncollectible except that personal injury or wrongful death claims shall be compromised [only as specifically provided in the statute].
  • Pay taxes, assessments, compensation of the conservator and other expenses incurred in the collection, care, administration and protection of the estate.
  • Allocate items of income or expense to either estate income or principal, as provided by law, including creation of reserves out of income for depreciation, obsolescence or amortization, or for depletion in mineral or timber properties.
  • Pay any sum distributable to a protected person or dependent of the protected person, without liability to the conservator, by paying the sum to the distributee or by paying the sum for the use of the distributee either to the guardian of the distributee or, if none, to a relative or other person having custody of the person.
  • Employ persons, including attorneys, auditors, investment advisors or agents, even though they are associated with the conservator, to advise or assist the conservator in the performance of administrative duties, act upon their recommendation without independent investigation and, instead of acting personally, employ one or more agents to perform any act of administration, whether or not discretionary.
  • Prosecute or defend actions, claims or proceedings in any jurisdiction for the protection of estate assets and of the conservator in the performance of fiduciary duties.
  • Execute and deliver all instruments which will accomplish or facilitate the exercise of the powers vested in the conservator.

A.R.S. § 14-5424.

Once appointed, a conservator also has numerous duties.  Unless waived by the Court, a conservator appointed in Arizona is required to submit an inventory listing all of the assets under the conservatorship and to provide a budget for the person’s expected income and expenses.  Arizona conservators are, among other things, required to assess the expected costs and benefits from proposed courses of action to prudently manage the incapacitated person’s financial affairs.  Conservators are also typically required to submit an accounting each year showing, in detail, all of the person’s financial affairs.  These requirements may be altered or waived entirely by the Court.

Learn More About Arizona Adult Conservatorships

Hire Trusted Arizona Counsel

This is just a brief summary of guardianship and/or conservatorship matters in Arizona and the process for appointment.  Read our becoming appointed as guardian and/or conservator article to learn more. There is much more involved.  If you have any questions or need assistance in a guardianship or conservatorship matter in Arizona, please don’t hesitate to contact us.  We provide efficient cost-effective representation and may be willing to handle your uncontested matter on a flat fee basis, plus costs.