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Guardianships and Conservatorships in Arizona

Elder Law Attorney Scottsdale, AZ | Kent Berk | Berk & Moskowitz, P.CGuardianships and conservatorships for adults often go together, but they deal with different situations and needs.  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 finances and assets.  The same person may simultaneously serve as guardian and conservator.  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 adult guardianships and conservatorships in Arizona.  We regularly handle uncontested guardianship and/or conservatorship matters on a flat fee basis, where we receive a fixed amount (usually no more than $3,000) 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 charge hourly.

Adult Guardianships in Arizona

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 guardianship may be limited, meaning that the guardian’s powers are limited to specified matters, such as consenting to medical treatment, arranging for outpatient counseling or making decisions concerning living arrangements.  Or, a guardianship may be general.  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 generally suspends the incapacitated person’s driver’s license and right to vote.  But, 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.

Learn More About Arizona Adult Guardianships

Adult Conservatorships in Arizona

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.  Subject to certain limitations, so long as he/she acts reasonably to accomplish the purposes for the conservatorship, a general conservator 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 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.

Learn More About Arizona Adult Conservatorships

Hire Trusted Counsel

This is just a brief summary of the conditions for the appointment of a guardian and/or conservator 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.  More information is available at the Maricopa County, Arizona Superior Court self-service website.   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.