
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.”)
A Trust is a document that actually changes ownership of assets to the Trust itself. The most common is a Living and/or Revocable Trust. The Trust owns the assets and they are controlled by the Trustee. The original owner of the assets is called the Trustor or Settlor. Normally, the initial Trustee of the Trust is the Trustor. This Trustor can be an individual or a married couple.The advantages to a Trust over a Will are many. For example:
- – A Trust does not die. For a married couple, when one of the Trustees passes away, usually the other spouse just takes over. When both of the Trustees pass away, a Successor Trustee (as designated in the Trust) assumes the role of Trustee.
- – There is no need for a probate.
- – Provision can be made in the event one or more of the Trustees becomes incapacitated.
- – A Trust is private. Assets and/or the distribution of the assets are never filed with the Court, as is the case with a Will.
- – A Trust stays in effect even if one or both of the Trustors become incapacitated. The Successor Trustee takes over, and there is no need for a guardianship or conservatorship.
- – A Trust, like a Will, can be changed if you change your mind or your life circumstances change.
- – A Trust can also have tax advantages not available with a Will.
- – A Trust can be used to distribute money to a minor child without having to go to Court. The Trustee manages the child’s money until the child reaches age 18 or reaches a certain age you specify in the Trust.