Guardianships & Conservatorships - Butler Estate Planning

When a loved one cannot make decisions for themselves due to incapacity, youth, old age, illness, or undue influence, a guardian or a conservator may be needed for the person’s protection.Guardianships and Conservatorships are only obtained through Court action. The person asking to exercise rights over another person (and/or their assets) is called the “Guardian” or the “Conservator.” Sometimes the same person serves the dual roles.In Arizona, a “Guardian” has the right to take charge of the person who needs the protection (the “Ward”). The Guardian must provide physical care, supervision, and protection for the Ward, as well as provide clothing, food, medical care, and shelter. Only a Court-appointed Guardian has the power to give consent to medical and psychiatric treatment for the Ward.

A “Conservator,” on the other hand, is responsible for managing the Ward’s property, assets, and finances. The Ward’s Conservator is responsible for providing an accurate annual accounting to the Court of all finances and any distribution of assets.

Court-appointed legal representation is required for the Ward. Usually, the proposed Guardian/Conservator hires his/her own attorney as well. The Court will require an initial hearing and annual reports.

Guardianships and conservatorships can usually be avoided if a Trust is firmly in place before a person becomes incapacitated. (See “Trusts.”)

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HELPFUL DEFINITIONS

The “Ward”

The “Ward” is a person, especially a minor or an incapacitated adult, placed in the care of a guardian or conservator.

The “Guardian”

The “Guardian” refers to someone appointed by a Court to make personal decisions for a minor child or an incapacitated adult, commonly called a “Ward.” Such decisions usually include day-to-day living arrangements, health care, education, and other matters related to the Ward’s comfort and well-being.

The “Conservator”

The “Conservator” is a person appointed by a Court to manage the property and financial affairs of another person, usually someone who is incompetent by reason of a physical or mental infirmity or age. The conservator is required to make regular accountings which must be approved by the Court. The conservator may be removed by order of the Court if no longer needed, upon the petition of the conservatee or relatives, or for failure to perform his/her duties.

The “Incapacitated Person”

The “Incapacitated Person” is an individual for whom a guardianship or conservatorship proceeding is initiated. S/he has been determined by the Court as lacking the capacity to manage at least some of his/her property or to meet at least some of the essential health and safety requirements.

More about Guardianships in ArizonaMore about Conservatorships in Arizona

Guardianships are often combined with Conservatorships. A Guardianship gives a person control over the “person” of another. The Guardian can make decisions as to living arrangements and medical treatment, while the Conservator decides what to pay for. The same person can serve as both the Guardian and Conservator. Court approval for some actions is required; annual reports are also required.

A Conservatorship is a Court proceeding where one person is put in charge of the assets (money, home, car, etc.) of another person. This proceeding is usually required when someone has a mental defect and does not have a Trust or valid Power of Attorney. It usually requires at least two attorneys, sometimes a guardian ad litem (also an attorney) and at least one Court hearing.

If a Conservator is appointed, the Conservator must provide the Court with an annual accounting as to what has been done with the assets. Many of the Ward’s expenditures have to be approved by the Court prior to spending money or selling assets. Each request may require a Court hearing. Once a diagnosis of dementia or related incapacity is given, a Conservatorship will often be necessary. At this point, it is too late to get a Power of Attorney or a Trust.