Arizona Guardianship and Conservatorship Attorneys

A guardianship is a court proceeding in which the Arizona Superior Court appoints someone to make personal and medical decisions for a person who cannot make them. A conservatorship is a court proceeding in which the court appoints someone to manage the money and property of a person who cannot manage them. Both protect vulnerable people, and both restrict the person’s independence.  So, Arizona law requires proof, notice, independent evaluation, and consideration of less restrictive alternatives before either is granted.

Berk Law Group has handled Arizona guardianship, conservatorship and related matters from Scottsdale since 1996. We represent family members seeking an appointment, proposed and serving guardians and conservators, and family members and other interested persons who oppose a petition or want an existing appointment limited, changed, or ended. We handle uncontested matters efficiently and litigate contested ones.

What Is the Difference Between a Guardian and a Conservator in Arizona?

The two are often requested together, but they address different needs.

• Guardian. Makes personal decisions for a person the court has found incapacitated (the “ward”): health care, living arrangements, safety, and services. A guardian does not manage the ward’s finances, apart from limited authority the statutes or the court’s order may give.
• Conservator. Manages the money and property of a “protected person”: safeguarding assets, paying expenses, managing property, keeping records, and accounting to the court.

A person may need a guardian, a conservator, both, or neither, and the same person or different people may serve in the two roles. The court should grant only the authority the person’s demonstrated needs require.

Key terms. The subject person (or proposed ward or proposed protected person) is the person the petition is about. A ward is a person under guardianship. A protected person is a person under conservatorship or another protective order.

Watch: What’s the Difference Between a Guardian and a Conservator in Arizona?

When Will an Arizona Court Appoint a Guardian?

For an adult guardianship, the court must find by clear and convincing evidence that:

1. The person is incapacitated;
2. The appointment is necessary to provide for the person’s demonstrated needs; and
3. Those needs cannot be met by less restrictive means, including appropriate technological assistance.

An incapacitated person is one who is impaired by 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 the person lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his or her person.

A diagnosis alone does not answer the question. The court looks at the person’s functional abilities, actual needs, available supports, and the alternatives. Common situations include dementia or other cognitive decline, a serious illness or injury, an intellectual or developmental disability, serious mental illness, or an immediate safety concern.

When Will an Arizona Court Appoint a Conservator?

The court may appoint a conservator, or enter another protective order, when it finds that the person cannot manage his or her estate and affairs effectively and that either the person’s property will be wasted or dissipated without proper management, or funds are needed for the support, care, and welfare of the person or those entitled to the person’s support.

Common concerns include unpaid bills, unexplained withdrawals, susceptibility to fraud or undue influence, and an inability to manage significant property. A full conservatorship is not the only answer: the court may instead authorize a single transaction or a limited protective arrangement.

Where money has already been taken, the matter may also involve a claim for financial exploitation of a vulnerable adult.

What Types of Guardianship and Conservatorship Does Arizona Recognize?

• General guardianship. The guardian holds the full range of a guardian’s powers over personal and medical decisions. It does not include general control of the ward’s finances; that is a conservator’s role.
• Limited guardianship. The court restricts the guardian’s authority to the specific areas where the ward needs help and leaves the ward’s other rights intact. Arizona courts are directed to encourage the ward’s maximum self-reliance and independence.
• Co-guardianship or co-conservatorship. Two people serve at the same time. The order should address whether they must act jointly.
• Temporary or emergency appointments. Available in qualifying emergencies, with expedited due-process protections.
• General or limited conservatorship, or a single-transaction protective order. The financial counterpart to the above.
• Guardianship with inpatient mental health authority. A guardian may not consent to inpatient psychiatric treatment unless the court specifically grants that authority, which requires additional proof and is subject to its own review requirements.

Guardianship for an Adult Child or Other Adult With a Disability or Mental Illness

Parents’ legal authority ends when a child turns 18, whatever the child’s abilities. Families of adults with an intellectual or developmental disability, a serious mental illness, or a brain injury often need to decide whether a guardianship, a conservatorship, or a less restrictive arrangement is appropriate.

• A petition may be filed within six months before an incapacitated minor’s eighteenth birthday so that the appointment takes effect when the minor becomes an adult, avoiding a gap in authority.
• The same standards apply as in any adult guardianship: incapacity, demonstrated need, and no less restrictive alternative. Many adults with disabilities can make some or all of their own decisions with support, and a limited guardianship or supported decision-making may be the better fit.
• For an adult with serious mental illness, the guardian’s ability to arrange inpatient treatment depends on whether the court grants inpatient mental health authority.
• A representative payee for Social Security or other benefits may address the financial side without a conservatorship.

For children under 18, see guardians for minors.

Who May Be Appointed Guardian or Conservator?

Arizona law sets an order of priority, which generally favors a person the subject person nominated while having capacity (for example, in a power of attorney), then the spouse, an adult child, a parent, other relatives, and others the court finds suitable, including licensed private fiduciaries and, where no one else is available, the public fiduciary. The court may pass over a person with higher priority for good cause and appoints whoever will serve the person’s best interest. Disputes over who should serve are among the most common contested issues. Read more about becoming appointed as guardian or conservator.

How Does the Arizona Guardianship and Conservatorship Process Work?

1. Petition. An interested person files a petition in the Superior Court explaining why an appointment is needed, what authority is requested, who is proposed to serve, and why less restrictive alternatives are insufficient.
2. Notice. The subject person and others entitled to notice, generally including the spouse, adult children or parents, and any current fiduciary or agent, must be given legally sufficient notice. The subject person must be personally served.
3. Court-appointed attorney. In an adult guardianship the court appoints an independent attorney for the subject person unless the person already has one. The court may do the same in a conservatorship.
4. Court investigator. An investigator interviews the subject person, the proposed fiduciary, and others, visits where the person lives, and reports to the court.
5. Medical or psychological evaluation. A physician, psychologist, or registered nurse evaluates the person and reports on the impairment and the person’s functional abilities.
6. Hearing. The petitioner must prove the statutory requirements. The subject person has the right to attend, to be represented, to present evidence, to cross-examine witnesses, and, in an adult guardianship, to request a jury trial.
7. Order, letters, and training. If the requirements are proved, the court enters an order tailored to the person’s needs and issues letters of appointment. Non-licensed fiduciaries must complete court-approved training, and a conservator may be required to post a bond or restrict accounts.
8. Ongoing reporting. A guardian files an annual report on the ward’s condition and care. A conservator files an inventory and then annual accountings.

What If the Guardianship or Conservatorship Is Contested?

In an uncontested matter, the interested persons agree that protection is needed and agree on who should serve and with what authority. The evidence, notice, investigation, and hearing requirements still apply, but the matter typically moves quickly.

A contested matter may involve disagreement over:

• Whether the person is incapacitated or needs financial protection at all
• Whether a power of attorney, trust, or other alternative is sufficient
• Who should serve
• Whether the requested authority is too broad
• Where the person should live or what care the person should receive
• How a serving conservator is managing or spending the person’s money
• Whether a serving guardian or conservator should be restricted, removed, or replaced

Contested matters can involve disclosure and discovery, depositions, expert testimony on capacity, the appointment of a guardian ad litem, mediation, and an evidentiary hearing or trial. We represent petitioners, objecting family members, and serving fiduciaries on both sides of these disputes, so we know how each side builds its case. Where agreement is possible we work toward it; where it is not, we litigate.

Watch: When Family Members Disagree Over Who Should Be Guardian or Conservator in Arizona

What Are the Alternatives to Guardianship and Conservatorship?

Because these proceedings restrict a person’s rights, the court must consider less restrictive alternatives, and families should consider them first:

• A health care or mental health care power of attorney
• A durable financial power of attorney
• A trust with a successor trustee
• Supported decision-making with reliable family or community assistance
• A representative payee for Social Security or other benefits
• Account safeguards, joint-signature requirements, or limited banking authority
• Case management and in-home support
• A single-transaction order or other limited protective arrangement

An existing power of attorney or trust does not end the analysis. There may be a dispute over whether the document is valid, whether the agent is acting properly or abusing the authority, or whether a bank or hospital will honor it. In those situations a guardianship, conservatorship, or other proceeding may still be needed. Read about Arizona powers of attorney.

What Are the Duties of a Guardian or Conservator?

Appointment creates fiduciary duties and continuing court oversight.

A guardian must protect the ward’s health and welfare, consider the ward’s preferences, arrange appropriate care and services, choose the most appropriate and least restrictive living arrangement, keep records, and report to the court annually.

A conservator must safeguard and prudently manage the protected person’s assets, keep them separate and properly titled, keep complete financial records, use funds only for authorized purposes, and file the inventory and accountings the court requires. Some transactions require prior court approval.

A guardian or conservator who fails to keep records, account, avoid conflicts of interest, or act for the person’s benefit may face objections, surcharge, restriction, or removal. We advise fiduciaries who want to perform their duties correctly, and we represent interested persons when a fiduciary’s conduct is in question. Read about Arizona fiduciary litigation.

Watch: Can a Guardian or Conservator Be Paid in Arizona?

Can a Guardianship or Conservatorship Be Changed or Ended?

Yes. Improved abilities, a workable less restrictive alternative, fiduciary misconduct, a breakdown in communication, or a better available fiduciary may each justify court review. Depending on the circumstances, the ward, the protected person, or another interested person may ask the court to:

• Limit or expand particular powers
• Require information, records, or an accounting
• Instruct the fiduciary
• Remove or substitute a guardian or conservator and appoint a successor
• Approve a different protective arrangement
• Terminate the guardianship or conservatorship

A ward may ask the court to find that he or she is no longer incapacitated. The proper request and the proof required depend on the existing order and the relief sought.

Emergencies and Temporary Appointments

Arizona law allows the appointment of a temporary guardian or temporary conservator in a qualifying emergency, where the person or the person’s property faces immediate and substantial harm and no one else has authority to act. The requirements are strict, the appointment is limited in time and scope, and the subject person keeps the right to counsel and to a prompt hearing. If someone is in immediate danger, call 911. Suspected abuse, neglect, or exploitation may also be reported to Arizona Adult Protective Services.

How Long Does It Take, and What Does It Cost?

Timing and cost depend on whether the matter is contested. An uncontested guardianship or conservatorship involves the petition, service, the court-appointed attorney, the investigator, the medical report, and one hearing. A contested matter involves additional hearings, discovery, and witnesses, and its cost depends on what is disputed and how the other participants proceed. In many cases the court may approve payment of reasonable fees from the protected person’s estate.

Why Berk Law Group for Guardianship and Conservatorship Matters?

• Focused experience. We concentrate on probate, trust, estate, guardianship, vulnerable-adult, and fiduciary litigation, and have since 1996.
• Both sides. We represent petitioners, serving guardians and conservators, and family members who oppose or want to change an appointment.
• Least restrictive approach. We evaluate the alternatives first and ask the court only for the authority the person’s needs require.
• Ready for a contest. These matters can turn into litigation over capacity, care, money, and family conflict. That is the work we do every day.
• Direct attorney attention. You work directly with an experienced attorney throughout.
• Recognized. AV Preeminent rated by Martindale-Hubbell, with attorneys recognized by Super Lawyers.

Read our client reviews or watch our video testimonials.

Watch: When Does Someone Need a Guardian or Conservator in Arizona?

More videos: Arizona Adult Guardianship, Arizona Adult Conservatorship, and all of our guardianship and conservatorship videos.

Frequently Asked Questions About Arizona Guardianships and Conservatorships

What is the difference between guardianship and conservatorship in Arizona?

A guardian makes personal and medical decisions for a person the court has found incapacitated. A conservator manages the money and property of a person who cannot manage them. A person may need one, both, or neither, and the court should grant only the authority the person’s demonstrated needs require.

How do I get guardianship of an adult in Arizona?

An interested person files a petition in the Superior Court and gives notice to the person and the family members entitled to it. The court appoints an attorney for the person, a court investigator, and a medical professional to evaluate the person, and then holds a hearing. The petitioner must prove by clear and convincing evidence that the person is incapacitated, that a guardian is necessary, and that less restrictive alternatives will not meet the person’s needs.

Can I get guardianship of my adult child with a disability or mental illness?

Possibly. Parental authority ends at 18, and the same standards apply as in any adult guardianship. A petition can be filed before the eighteenth birthday so that the appointment takes effect when the child becomes an adult. A limited guardianship, a power of attorney, or supported decision-making may be enough. Inpatient psychiatric treatment requires authority the court must specifically grant.

Does a power of attorney prevent a guardianship or conservatorship?

Not always. A valid, working power of attorney is a less restrictive alternative and often makes a court proceeding unnecessary. A proceeding may still be needed if the document’s validity is disputed, the agent is unwilling, unable, or misusing the authority, or a bank or medical provider will not honor the document.

Can someone contest a guardianship or conservatorship?

Yes. The subject person and other interested persons may contest whether protection is needed, the scope of the authority requested, or who should serve. The subject person has the right to an attorney, to present evidence and cross-examine witnesses, and, in an adult guardianship, to request a jury trial.

Can a guardian or conservator be removed or replaced?

Yes. The court can restrict, remove, or substitute a guardian or conservator when that is in the person’s best interest, including for misconduct, failure to report or account, inability to serve, or changed circumstances. The ward may also ask the court to end the guardianship on the ground that he or she is no longer incapacitated.

How long does it take, and how much does it cost?

An uncontested matter involves a petition, notice, a court-appointed attorney, an investigator, a medical report and one hearing. A contested matter takes longer and costs more, depending on what is disputed. In many cases the court may approve payment of reasonable fees from the protected person’s estate.

Serving Scottsdale and All of Arizona

Berk Law Group, P.C. represents families, guardians, conservators, and family members opposing or seeking to change an appointment throughout Maricopa County and across Arizona, from Phoenix, Mesa, and Chandler to Flagstaff and Prescott, from our Scottsdale office.

Discuss an Arizona Guardianship or Conservatorship Matter

Related Practice Areas and Resources

• Becoming Appointed as Guardian or Conservator
• Guardians for Minors
• Financial Exploitation of Vulnerable Adults
• Abuse and Neglect of Vulnerable Adults
• Arizona Powers of Attorney
• Arizona Fiduciary Litigation
• Arizona Trust Litigation
• Arizona Probate and Estate Litigation
• Guardianship and Conservatorship Videos
• Arizona Courts probate forms

Guardianship and Conservatorship FAQs

• Dementia and Alzheimer’s Disease: Guardianship and Capacity Questions
• What If a Will or Trust Was Changed When Someone Lacked Capacity?
• Understanding Mental Capacity in Legal Decisions
• What If the Agent Under a Power of Attorney Abuses Their Authority?