As life expectancy continues to grow, America’s over-65 population also grows. Although this is good news, age-related issues that were rare in previous generations are far more common today. Adult guardianship and conservatorship are two examples of this.
While the two roles share many similarities, and the terms are often used interchangeably, they are not the same thing. Here are some differences, why it’s important to name a guardian and conservator in your estate plan, and what happens if you fail to do so.
What Is Adult Guardianship?
An adult guardian is a legally-appointed person who is granted the authority to make decisions for another person, known as the ward. The court will make this decision if it finds that the prospective ward is incapable of making reasonable decisions. Typically, this is due to medical issues. The most common reasons are:
- Physical illness or disability
- Mental illness or disability
- Chronic drug or alcohol use
The guardian makes personal decisions for the ward. How extensive those decisions are depends on the findings of the Arizona probate court. An adult guardian’s responsibilities are similar to those of a parent and may include making medical decisions, making living arrangements, arranging social activities, and deciding who may visit the ward.
To help protect the ward, the court requires a yearly written report that includes a written statement from the ward’s physician and information on his or her living conditions. It is due every year on the anniversary of the appointment.
What Is Conservatorship?
Conservators are appointed for the same reason as an adult guardian: because the ward (here known as a protected person) is deemed incapable of making reasonable decisions. The difference is that the conservator manages the protected person’s financial interests.
Duties of the conservator also vary according to the probate court’s findings. They may include paying bills, distributing funds for the protected person’s support, and making financial investments on their behalf. The conservator also pays all claims against the ward and his or her estate.
To help safeguard the protected person, the conservator must keep detailed, accurate financial records. During the first 90 days of their appointment, the conservator must submit to the court a complete inventory of the protected person’s estate. After that, he or she must file an annual report detailing every financial transaction made on behalf of the protected person.
The conservator may neither pay his or her own bills from the protected person’s estate, nor may they make gifts of the protected person’s assets without a court order.
When Do Courts Appoint a Guardian or Conservator?
Typically, Arizona courts err on the side of personal freedom when it comes to petitions for adult guardianship and conservatorship. Unless the adult is in acute danger, courts prefer that parties investigate other options first. This means that the criteria for declaring an adult incompetent or incapacitated are stringent. In other words, just because your aunt is eccentric and built a cat maze in the backyard does not mean the court will find her incapable of making reasonable decisions.
If the proposed ward or protected person already has legal documents that name someone to act on their behalf, e.g. a power or attorney or advance directive, the court usually appoints that person to act as guardian or conservator. The court may appoint one person to fulfill both roles or two separate entities.
Arizona courts may choose to override the ward’s previously-stated preferences under certain circumstances. These include:
- The ward was incapable of making reasonable decisions at the time he or she drafted the document
- The power of attorney or advance directive was written improperly
- The party petitioning the court for guardianship or conservatorship demonstrates that the appointed individual is not acting in the ward or protected person’s best interest
Who May Petition the Court for Guardianship or Conservatorship?
Anyone who is concerned for the ward or protected person’s wellbeing may petition the court to determine capacity and appoint a legal guardian and/or conservator. However, even if the court finds the adult incapable of making reasonable decisions, that does not mean the petitioner will be named guardian.
What Happens When You Petition for Guardianship or Conservatorship?
After the petition is filed, the court assigns an investigator as a well as a physician to examine the adult in question. Both of these people interview the proposed ward or protected person and submit their reports to the court. If the proposed ward or protected person does not have an attorney, the court will also appoint a lawyer to represent him or her.
Notification of the petition and hearing information are delivered to the potential ward or protected person. In addition, statute requires the court to notify individuals such as the spouse, parents, and adult children of the person named in the petition. There may be additional notification requirements, such as anyone who has filed a demand for notice, but these vary according to the individual case.
How Does the Court Choose a Guardian or Conservator?
Whether choosing a guardian or a conservator, the court first looks at anyone who was already appointed as guardian or conservator. From there, Arizona considers potential guardians and conservators in this order:
- The person named by the proposed ward in an advance directive
- The spouse
- The adult children
- The parents
- A relative who has lived with the ward for six months or more
What if No One Is Willing to Act as Guardian or Conservator?
If the adult in question has no family or friends willing to serve as guardian or conservator, the court may appoint a private or public fiduciary. If the ward’s estate is on the modest side, the court will likely appoint the Maricopa County Public Fiduciary. For others, the court appoints a private fiduciary. These individuals are licensed by the state to serve in this capacity, but they are not caregivers. The ward’s estate pays the fees that private fiduciaries charge.
The Role of Estate Planning in Guardianships and Conservatorships
Estate planning helps protect you and your loved ones. First, without direction the court may appoint someone you would never have chosen to make important decisions or handle your finances. Second, going to court is a lengthy and often expensive process. Third, families often disagree about who should take on this role and these disputes may cause a permanent rift between family members.
At Cholewka Law, we employ a variety of legal strategies to help you avoid these issues, including preparing effective trusts, living wills, and powers of attorney. We also assist families who are currently facing this dilemma. If you have questions about petitioning for guardianship or conservatorship, please contact our office today. Our experienced team can help guide you through the process to find the best solution for all parties.
