Guardianship and conservatorship are both legal appointments that allow a family member or other person to manage certain aspects of life and finances for a child or an incapacitated adult. The responsibilities of a guardian and a conservator are different, but the processes for seeking appointment and the factors the court considers in determining who is a suitable guardian or conservator are very similar.

Often, a person who is in need of a guardian also needs a conservator, and vice versa. These two roles can be filled by different people, if that best suits the needs of the ward. But, often, the same person will take responsibility for both the practical and financial decision-making and execution.

At Lincoln & Wenk, we know that serving as a guardian or conservator is a big responsibility, and one that can be challenging at times. We know you may need more from your attorneys than documents and representation at a hearing. We are here not just to help you establish a guardianship or conservatorship, but to give you the tools and information you need to successfully fulfill that role.

What is Guardianship?

Guardianship allows a family member or other concerned party to assume responsibility for decision-making and care of an incapacitated adult or a minor. The circumstances and procedures concerning guardianship of adults and minors 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.

When is a Guardian Appointed?

A guardian may be appointed for a juvenile 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 they are unable to make important decisions for themselves. This situation may arise as a result of worsening mental illness, an injury that impacts cognition, or a condition such as Alzheimer’s disease or 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 prospective ward, including the incapacitated person themself. The court will appoint an investigator and one or more medical professionals to interview and/or examine the prospective 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 their own legal representation. If the incapacitated person doesn’t have their own attorney, the court will appoint an attorney to represent their interests.

Who Can Serve as a Guardian?

Arizona law doesn’t put specific restrictions on who can serve as a guardian in the state. Instead, ARS 14-5106 sets forth a long list of personal information which must be disclosed to the court when someone is seeking appointment as a guardian. This information includes:

• Whether the proposed appointee has any felony convictions
• Certain past experience as a guardian or conservator, or holding power of attorney for another person
• The proposed appointee’s working knowledge of the powers and responsibilities of a guardian
• Whether the proposed appointee or any enterprise they have an interest in is listed in the state’s elder abuse registry
• Whether the proposed appointee has failed in certain duties as a guardian or conservator in the previous three years, or has been removed as a guardian or conservator
• Whether the proposed appointee has certain possible conflicts of interest, such as an interest in an enterprise that provides certain services

Under the law, none of these variables is a hard-and-fast disqualifier, but this information will be considered by the court in determining the appropriateness of the appointment. Subject to these provisions, any qualified person may be appointed. However, Arizona law directs courts to give preference to certain parties, such as someone chosen by the incapacitated person if they have the ability to exercise that judgment, a person the incapacitated person nominated in their most recent legal document making such nomination, or a spouse, adult child, parent, or other relative.

The Arizona Supreme Court requires any person appointed guardian of an incapacitated adult or a juvenile in the state to complete a guardianship training module to ensure that they understand their role and responsibilities.

What Does a Guardian Do?

In Arizona, caretaking responsibilities for an incapacitated adult or minor child are split into two categories. A guardian is responsible for the practical and personal caretaking, such as living arrangements and medical care, but has limited ability to spend money on the ward’s behalf. A conservator is appointed specifically to manage the ward’s financial affairs. Often, the same person will be appointed guardian and conservator.

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 as possible and appropriate
• Assisting the ward in obtaining other necessary services
• Educate themselves about the benefits available to the ward and assist 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, the guardian should consult the ward or gather information based on their own past knowledge, input from family members and other sources about what the ward would choose if they were able to make the decision on their own. However, when that type of information isn’t available or the ward’s preference would be harmful, the guardian is called upon to exercise independent judgment about what is 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.

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 is a Conservator Appointed?

A conservator is appointed when a person can no longer manage their own financial affairs, either due to a lack of capacity or because they are unable to communicate your wishes. This could be the result of a serious injury, a cognitive disorder such as Alzheimer’s or dementia, or certain types of mental illness.

The process for appointing a conservator is similar to the process for establishing a guardianship, and begins with a petition filed by a family member or other interested person. The process can be initiated by a family member or any interested person.

Who Can Be a Conservator?

Generally, any competent adult the court deems suitable can be appointed conservator. Arizona does not have hard and fast rules like some states, such as a prohibition on someone with a felony conviction serving as conservator. However, ARS 14-5106 requires a person seeking appointment as a conservator to disclose certain information to the court, just as described for would-be-guardians above. The court will take these and other variables into account in deciding whether the person should be appointed conservator.

The Arizona Supreme Court requires conservators to complete a training program similar to the program mandated for guardians, but tailored to a conservator’s responsibilities.

What Does a Conservator Do?

A conservator isn’t involved in care of the ward like a guardian is. Rather, their role is to take charge of and protect the assets of the ward. This begins with obtaining a certified copy of the letter of appointment and filing it with the county recorder in any county where your ward owns property. You’ll 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 ward’s financial accounts.

Within 90 days of appointment, the conservator must prepare and file an inventory of the ward’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 you provide an estimated value of property or, where necessary, have it appraised. You’ll also need to obtain a copy of the ward’s credit report.

The conservator is also responsible for preparing a budget for the ward, projecting how long the ward’s assets and other resources will support the ward, and keeping and organizing financial records. And, the conservator is 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 regard to certain assets.

When the conservator is required to make decisions on the ward’s behalf, they should aim to act as the ward would want if they were able to make an informed decision on their own. However, in some cases you may have to make a decision in the ward’s best interests that conflicts with their wishes.

Talk to an Experienced Estate Lawyer

When you’re 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 technical legal assistance getting your documents in order. We understand the challenges you face and work hard to set you up for success.

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.