Guardianship and Conservatorship Attorneys

The guardianship and conservatorship processes both concern the appointment of a legal representative for a person that allows the representative to manage certain aspects of life and finances for a minor or an incapacitated adult (sometimes called a “ward” in the case of guardianship, or a “protected person” in the case of conservatorship). The responsibilities of a guardian and a conservator are different, with a guardian serving to watch over the personal wellbeing of the minor or incapacitated person, and a conservator serving to manage the finances of a person in need of protection. However, the processes for seeking appointment, and the factors the court considers in determining who is a suitable guardian or conservator, are very similar.

 Sometimes—although not always—a person in need of a guardian also needs a conservator. These two roles can be filled by different people if that best suits the needs of the person in need of protection. But for reasons of efficiency, the court will often appoint the same person to handle both roles.

 At Lincoln & Wenk, we know that serving as a guardian or conservator is a big responsibility, and one with unique responsibilities and challenges. We know you may need more from your attorneys than simply preparation of legal documents. That is why we are here to not only prepare your court paperwork, but provide guidance along the way.

What is Guardianship?

Guardianship allows a family member or other concerned party to assume responsibility for decision-making and care of a minor or incapacitated adult. The circumstances and procedures concerning guardianship of minors and adults are slightly different, but the general nature of the relationship between guardian and ward, and the duties of the guardian, are quite similar. In both cases, the guardian’s role is largely the same as that of the parent of a minor, although the role and authority of a guardian can be limited if the court determines that a general guardianship is not necessary or desirable.

When is a Guardian Appointed?

A guardian may be appointed for a minor who does not have the care and support of a parent, such as a child who has been orphaned or whose parents are incarcerated. Guardianship over an adult will be established only if the court determines that the proposed ward is legally incapacitated, meaning that he or she is unable to make important responsible decisions concerning his or her person. This situation may arise because of physical injury, an injury that impacts cognition, or a condition such as dementia.

The process begins with a petition to appoint a guardian. This petition may be filed by any person with an interest in the welfare of the proposed ward. The court will then appoint an investigator and one (1) or more medical professionals to interview and/or examine the proposed ward before holding a hearing on the petition. 

The proposed ward has the right to object to the establishment of guardianship or to request appointment of a specific guardian and is entitled to legal representation. If the incapacitated person does not already have an attorney, the court will appoint an attorney.

Who Can Serve as a Guardian?

Arizona law does not put specific restrictions on who can serve as a guardian, but it does set forth a list of those with priority to serve as guardian, specifically:

  • A guardian or conservator of the person or a fiduciary appointed or recognized by the appropriate court of any jurisdiction in which the incapacitated person resides.
  • An individual or corporation nominated by the incapacitated person if the person has, in the opinion of the court, sufficient mental capacity to make an intelligent choice.
  • The person nominated to serve as guardian in the incapacitated person’s most recent durable power of attorney or health care power of attorney. 
  • The spouse of the incapacitated person.
  • An adult child of the incapacitated person.
  • A parent of the incapacitated person, including a person nominated by will or other writing signed by a deceased parent.
  • Any relative of the incapacitated person with whom the incapacitated person has resided for more than six months before the filing of the petition.
  • The nominee of a person who is caring for or paying benefits to the incapacitated person.
  • If the incapacitated person is a veteran, the spouse of a veteran or the minor child of a veteran, the department of veterans’ services.
  • A fiduciary who is licensed pursuant to section 14-5651, other than a public fiduciary.
  • A public fiduciary who is licensed pursuant to section 14-5651.

A.R.S. § 14-5311(B).

What Does a Guardian Do?

A guardian is responsible for the practical and personal caretaking of the ward, such as living arrangements and medical care. The guardian also manages the finances of the ward if the ward does not have significant assets.

General responsibilities of an Arizona guardian include:

  •     Making suitable living arrangements for the ward
  •     Ensuring that the ward has sufficient clothing, personal care items, and other necessities
  •     Arranging for medical care, including inpatient or residential care if necessary
  •     Arranging for and coordinating education and training of the ward as possible and appropriate
  •     Assisting the ward in obtaining other necessary services
  •     Educating themselves about the benefits available to the ward and assisting them in pursuing benefits
  •     Reporting to the court on the welfare of the ward

The guardian is charged with making many decisions for the ward. When possible and appropriate, the guardian should consult the ward and seek input from family members and other sources about what the ward would choose if he or she were able to make the decision. However, when that type of information is not available, or the ward’s preference would cause substantial harm, the guardian is called upon to act in the best interests of the ward.

When the ward is a minor, the responsibilities of the guardian are essentially the same as those of a parent, with the added responsibility of reporting to the court, per the court’s policy.

What is a Conservator?

While a guardian takes care of the physical and practical welfare of the ward, a conservator is appointed specifically to manage money and other financial and property-related matters when the ward has significant assets or income (usually greater than $10,000 per year).

When is a Conservator Appointed?

A conservator is appointed when a person can no longer manage his or her own financial affairs and the person has property that would be otherwise wasted or dissipated. This could be due to the same reasons that prompt a guardianship, although it is not limited to such circumstances.  

 The process for appointing a conservator is similar to the process for establishing a guardianship. As with a guardianship, it begins by filing of a petition by an interested person and appointment of a lawyer for the proposed protected person. It also can involve appointment of a medical professional and/or court investigator.  

Who Can Be a Conservator?

Generally, any competent adult the court deems suitable can be appointed conservator. As with guardianships, Arizona law provides a list of persons with priority to apply to act as conservator:

  • A conservator, guardian of property or other like fiduciary appointed or recognized by the appropriate court of any other jurisdiction in which the protected person resides.
  • An individual or corporation nominated by the protected person if the protected person is at least fourteen years of age and has, in the opinion of the court, sufficient mental capacity to make an intelligent choice.
  • The person nominated to serve as conservator in the protected person’s most recent durable power of attorney.
  • The spouse of the protected person.
  • An adult child of the protected person.
  • A parent of the protected person, or a person nominated by the will of a deceased parent.
  • Any relative of the protected person with whom the protected person has resided for more than six months before the filing of the petition.
  • The nominee of a person who is caring for or paying benefits to the protected person.
  • If the protected person is a veteran, the spouse of a veteran or the minor child of a veteran, the department of veterans’ services.
  • A fiduciary who is licensed pursuant to section 14-5651, other than a public fiduciary.
  • A public fiduciary who is licensed pursuant to section 14-5651.

 A.R.S. § 14-5410(A).

What Does a Conservator Do?

A conservator is not involved in the care of the ward’s person like a guardian. Rather, the conservator’s role is to take charge of and protect the assets of the protected person. This begins with obtaining a certified copy of the letter of appointment and filing it with the county recorder in any county where the protected person owns property. The conservator will also need to present these letters in other circumstances, such as when meeting with a bank or other financial institution to take charge of the protected person’s financial accounts.

Within ninety (90) days of appointment, the conservator must prepare and file an inventory of the protected person’s assets, including cash, financial accounts, real property, motor vehicles, valuables such as jewelry and antiques, life insurance policies with cash value and annuities, and household goods. This step also requires that the conservator provide an estimated value of property or, where necessary, have it appraised. He or she will also need to obtain a copy of the protected person’s credit report.

The conservator is responsible for preparing a budget for the protected person, projecting how long assets and other resources will support the protected person, and keeping and organizing financial records. The conservator is also responsible for general financial tasks, such as filing tax returns and paying bills and living expenses.

The conservator generally has the authority to sell assets, but the court may restrict that authority with regards to certain assets.

When the conservator is required to make decisions on the protected person’s behalf, he or she should aim to act as the protected person would want if he or she were able to make an informed decision independently. However, much like a guardian, the conservator may have to make a decision in the protected person’s best interests.

Talk to an Experienced Estate Lawyer

When you are in the difficult position of having to step in to take over practical or financial decision-making for a loved one, the right guidance can make all the difference. At Lincoln & Wenk, we offer more than generic legal assistance. We understand the challenges you face and work diligently to guide you on the path to serving successfully as guardian or conservator.

To learn more about how we can help you help your loved one, call 623-294-2464 or fill out the contact form on this page.

Call us at 623-294-2464 or contact us to schedule your consultation today.

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