Arizona Guardianship and Conservatorship Attorneys: Compassionate Advocacy, Proven Expertise
Navigating the complexities of guardianship and conservatorship in Arizona can be emotionally taxing and legally challenging. At Berk Law Group, we bring a compassionate and authoritative approach to these sensitive matters. Whether you’re facing a contested or uncontested case, our experienced Arizona attorneys are here to guide you every step of the way.
What is Guardianship and Conservatorship?
Guardianship and conservatorship are legal processes designed to protect those who cannot care for themselves. In Arizona, a guardian is responsible for the personal well-being of the subject person, while a conservator manages the person’s financial affairs. There may also be a trustee that is responsible for managing the incapacitated person’s trust assets.
The process of guardianship of an incapacitated person can be confusing and may initially seem daunting. Some loved ones report feeling tremendous guilt at even attempting to seek control over a portion of someone’s life who at one time was a vital and strong individual. Yet, if guardianship has become the only available option, then it can be accomplished with dignity for all involved.
On the other hand, a conservator handles and makes decisions concerning a person’s finances and assets if the person is unable to manage his/her estate and affairs.
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 incapacitated person.
- Subject Person: The person that may be incapacitated and that may need assistance.
- Protected Person or Ward: The person that is under guardianship or conservatorship.
- Guardian: The person legally appointed by the Court to act in personal (not financial) matters on behalf of the subject person.
- Conservator: The person legally appointed by the Court to act in financial matters on behalf of the subject person.
In Arizona, guardianship and conservatorship are legal relationships established by a court to assist individuals who are incapable of managing their own affairs due to incapacity. These relationships are governed by specific statutes within the state, and they assign roles and responsibilities to protect the welfare and assets of incapacitated persons, known as wards (in guardianship cases) or protected persons (in conservatorship cases).
Types of Guardianship in Arizona
- Full Guardianship: Grants comprehensive control over the ward’s personal and financial decisions. This is appropriate when the ward cannot make any decisions independently.
- Guardianship with Restrictions: Limits the guardian’s authority to specific areas, respecting the ward’s ability to make some decisions.
- Co-Guardianship: where two individuals are appointed to serve as guardian at the same time. This may or may not require the unanimous agreement of the co-guardians.
Qualifications to Become Legal Guardian or Conservator
The qualifications of a legal guardian vary based on state laws, as each state has its own set of requirements. Generally, to be appointed as a guardian or conservator, an individual must have reached the age of majority in their state. Additionally, many states will disqualify someone from becoming a guardian if they have a criminal record.
One crucial qualification for a legal guardian or conservator is that they must not be incapacitated themselves. They need to have the capacity to assume the responsibilities and duties associated with guardianship. This means being mentally and physically capable of making important decisions on behalf of the person they are appointed to protect. It is essential to consult the laws of the particular state in question to fully understand the requirements.
Key Responsibilities of a Guardian in Arizona
A guardian is an individual or entity appointed by the court to make personal decisions for the ward. These decisions often pertain to medical treatment, living arrangements, and educational and social activities. Their roles and responsibilities include:
- Personal Care: Making decisions about the ward’s daily life, including health care, education, and social activities.
- Medical Decisions: Deciding on the type of health care the ward receives, including treatment options and medical providers.
- Living Arrangements: Determining where the ward will live, whether at home, with a relative, or in a care facility.
- Status Reports: Filing regular reports with the court about the ward’s condition, living situation, and the care being provided.
Key Responsibilities of a Conservator in Arizona
A conservator is appointed by the court to manage the financial affairs and property of a protected person who is unable to manage their own resources or resist fraud or undue influence. Their key roles and responsibilities include:
- Asset Management: Managing the protected person’s finances, including their assets and property, in a prudent manner.
- Financial Decisions: Making decisions regarding investments, property sales, and the payment of debts and expenses.
- Record Keeping: Maintaining detailed records of all transactions involving the protected person’s assets, including receipts, disbursements, and investments.
- Financial Reports: Preparing and filing annual financial reports with the court, detailing all income, expenses, and changes in assets.
Navigating Legal Challenges and Disputes
Guardianship cases can sometimes lead to family disputes or legal challenges. Our team is skilled in handling such situations, offering services in:
- Contesting Guardianship: For example, where a guardianship is not in the ward’s best interests or where there is a dispute over who should be appointed guardian or whether one person should be removed and substituted with another.
- Guardianship Disputes: Sometimes there are disputes over where the subject person should live (placement), what medical treatment they should or should not receive or other fundamental issues. We assist in resolving these and many other types of issues, including bringing such matters before the Court for resolution.
- Conservatorship matters: On the other hand, there are sometimes disputes over how the conservator is managing or spending the protected person’s assets.
- Resolving Family Disputes: We employ mediation and alternative dispute resolution to find amicable solutions. We are ready, willing and able to litigate in Court if necessary.
When is Guardianship or Conservatorship not necessary?
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 and that person is acting properly to protect 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.
Considering Guardianship or Conservatorship for a Loved One?
Many people starting the process naturally have questions: Is this really necessary? Can it be avoided? Who can petition? Can it be revoked, limited, or expanded as needed? What are my rights and responsibilities if I am nominated to fill the role of guardian or conservator? These are some examples of the most common questions. By asking questions and addressing these concerns with an experienced Arizona attorney, families and loved ones show care and love for the person whom guardianship and/or conservatorship is sought and may avoid problems later. And, an experienced attorney can guide you through the process and may be able to avoid disruptive, stressful and time-consuming issues.
Basic Steps to Request Guardianship or Conservatorship
To obtain a legal guardian or conservator for an adult, it is essential to follow the legal process specific to the state in which the person resides. While the exact steps may vary, the general procedure usually involves the following:
1. Familiarize yourself with state laws: Begin by researching the laws and regulations regarding adult guardianship/conservatorship in the relevant state. Each state may have its own requirements and procedures.
2. Petition or application to the court: Typically, the first step involves submitting a petition or application to the appropriate court, often the probate court. This document requests the appointment of a legal guardian and/or conservator for the adult in question.
3. Notification process: After the petition is submitted, the court will generally require sending notice to both the elderly person and their relatives, informing them of the application. This ensures that all parties involved are aware of the proceedings. The Court may appoint an attorney to represent the subject person if they don’t already have an attorney.
4. Evaluation and assessment: In many cases, there will be a formal hearing to evaluate the adult’s capacity to make important decisions independently. This assessment helps determine whether the individual requires a legal guardian and if the applicant seeking guardianship is suitable for the role.
5. Additional steps: Depending on the state’s regulations, there may be other requirements involved in the process. Some states may conduct an investigation to assess the appropriateness of legal guardianship. Furthermore, specific rules govern who can apply for the appointment of a guardian.
6. Contested cases: If objections arise from the adult themselves, family members, or friends, the court will need to consider evidence from both sides. This evaluation aims to determine whether appointing a guardian or conservator is necessary and whether the applicant is the appropriate person for the role.
7. Last resort consideration: Courts generally view the appointment as a last resort since it involves relinquishing some or all of the ward’s legal rights. As a result, if there are viable alternatives, such as a well-executed power of attorney, the court may not appoint a guardian or conservator.
It is important to note that the process of obtaining a legal guardian or conservator for an adult can be complex. Therefore, seeking advice from an attorney who specializes in these matters is highly recommended to ensure all legal requirements are met and the best interests of the individual are protected.
Both guardians and conservators are subject to court oversight to ensure they act in the best interests of the ward or protected person. They must seek court approval for certain decisions, such as selling real estate, changing the protected person’s living arrangements significantly, or terminating the guardianship or conservatorship.
It is common for guardians and conservators, as well as the wards or protected persons, to be represented by attorneys to ensure that all actions comply with Arizona law and protect the interests of the incapacitated individual.
Arizona’s legal framework for guardianship and conservatorship emphasizes the protection of individuals who cannot care for themselves or manage their finances. These roles and responsibilities are designed to ensure that the guardian or conservator acts in the best interest of the incapacitated person, providing care, protection, and financial management as needed.
Why Choose Berk Law Group?
Our Arizona attorneys have extensive experience in both contested and uncontested guardianship and conservatorship matters. We understand the emotional weight these cases carry and offer a compassionate yet authoritative approach to resolving them.
What are your fees for guardianship/conservatorship matters?
We offer a transparent fee structure tailored to the complexities of your case. We regularly handle uncontested guardianship and/or conservatorship matters on a flat fee basis, where we receive a fixed amount (usually ranging from $2,500-$5,000, 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 fees based on the time worked on your matter.
What is an Adult Guardianship 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 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.
The court will grant guardianship over a ward only to the extent necessary to help the potential ward. So, 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, meaning that the guardian is authorized to make all decisions for the incapacitated adult.
What are an 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. The guardian is supposed to make the decisions that the incapacitated adult would make if the adult had capacity to make the decisions. The guardian is also supposed to implement the least restrictive means of fulfilling the incapacitated person’s needs. 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
What is a Conservatorship 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.
What are an 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:
- 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.
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 Guardianship and Conservatorship Attorneys
This is just a brief summary of Arizona Guardianships and Conservatorships. Read our becoming appointed as guardian and/or conservator article to learn more. There is much more involved.
Contact Berk Law Group
For the concerned loved one, guardianship and/or conservatorship can mean freeing up precious resources of time, energy, and finances toward the care of someone who needs it. For those who feel they have been asked to give up their rights to self-sufficiency, challenging guardianship can help them retain their self-respect and independence.
There is a time and place for a guardianship and conservatorship. For a family member who truly needs assistance, guardianship and conservatorship are useful tools to ensure that someone else can administer the incapacitated adult’s affairs if other arrangements have not been made. Consulting with a knowledgeable Arizona attorney can help.
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.
Frequently Asked Questions (FAQ)
What is the process for establishing guardianship in Arizona?
The process involves filing a petition, notifying interested parties, and attending a court hearing. Our attorneys can guide you through each step.
How does Arizona law protect the rights of the ward?
Arizona law mandates that the ward’s best interests are the primary consideration in any guardianship or conservatorship proceeding.