Estate planning in Arizona is so much more than merely deciding how to distribute assets to beneficiaries. Its a means to protecting yourself and your family when you can no longer do so. One way to do this is through the creation of a comprehensive estate plan that takes into consideration the role guardianships and conservatorships could play in your life and the lives of others if you do not plan appropriately. But guardianships and conservatorships are often misunderstood and because of that, people tend to avoid them.
At Duffield Adamson & Helenbolt, our estate planning attorney in Arizona will ask the right questions so that a comprehensive estate plan can be created. To do so, we help you understand what guardianships and conservatorships, how they are used, and what their effects are so that you can make informed decisions. Contact us online or at (520) 792-1181 for a consultation to learn more about estate planning generally and guardianships and/or conservatorships specifically.
What Constitutes a Guardianship and Conservatorship in Arizona?
Guardianship is a process used by the court to grant someone (the guardian) legal authority to make decisions regarding another person (the ward or incapacitated, protected person). Conservatorship is a related but separate process used by a court to grant someone (the conservator) legal authority to make decisions on behalf of another person (the ward or incapacitated, protected person) regarding finances and/or to manage the ward's estate. The term guardian, however, is confusing because it is used for multiple purposes and is often used in connection with minor children.
With respect to conservatorships, there are two basic types: (1) limited; and (2) general conservatorships.
A limited conservatorship is created for a person who has a disability like autism, epilepsy, cerebral palsy, or other developmental disability and has had it prior to their 18th birthday. These conservatorships are “limited” because they require less supervision and care than wards under a general conservatorship. In limited conservatorships the ward requires less supervision because they are able to maintain a certain level of care independently.
In these situations, parents should really consider a Will that appoints a guardian for a minor child or incapacitated adult child (sometimes referred to as adult guardianship). When you die, and your child is still a minor or an incapacitated adult child, you want to make sure the person caring for that person (if the other parent is deceased as well or otherwise unable to care for the child) is someone you both trust. Plus, through an estate plan, you can do other things, like setting up a trust that will help ensure your child (whether a minor or adult) is financially secure for as long as the trust allows. Plus, if drafted right, an estate plan can also make sure your child benefits from public assistance in addition to trust funds.
A general conservatorship is created when an adult (typically an elderly person but can be a younger adult person) cannot manage their finances due to deteriorated mental capacity or impairment caused by an illness or injury. While they recover from the illness or injury, a conservator may be appointed by a court to address their financial needs. If you think you are too young to have a conservatorship affect you, then think of this famous case: Britney Spears and her father.
Examples of when a general conservatorship may be needed include but are not limited to when the incapacitated person (regardless of age):
- falls into a coma due to an injury or illness
- develops a neurological disease, like Alzheimer's, Parkinson's, or dementia
- suffers from a physical trauma––like a head injury, a fall, or a stroke––that impairs their ability to think or express their wishes
- suffers from any other type of mental or physical incapacitation, even if for a short period
One word of caution: People who suffer from any of the above can become vulnerable to bad actors who may try to manipulate the situation for their own financial gain. These bad actors may, for example, attempt to divert your disability payments (fraud) or coerce you into changing a will (undue influence). Here, think of Britney Spears again and the allegations against her family misusing the conservatorship for their financial gain.
This is why it is ever-important to draft an estate plan as soon as you can regardless of your age or job because when it comes to your children or your own health, it's nice to know someone you trust is taking care of matters for you while you can not.
To avoid a court-appointed conservator when or if you become ill or incapacitated in some way, you should ensure your estate plan includes things like a living will or durable power of attorney. What type of document you have will depend on your life circumstances, so speaking with an estate planning attorney in Arizona is important.
The Role of Conservators in Arizona
A conservator or adult guardian has the power to make important decisions on their ward's behalf. Some common duties they may be permitted to undertake include:
- Changing legal rights, generally
- Fixing the ward's residence or dwelling
- Accessing the ward's confidential records
- Consenting or withholding consent to marriage
- Entering into contracts on behalf of the ward
- Giving or withholding medical consent on behalf of the ward
- Selecting the ward's relationships
- Make decisions to educate the ward
Of course, not all of the above duties will apply to each individual case. In fact, the specific powers of a conservator can be limited. Moreover, a person may have a different conservator for each separate issue. For example, one person may have a conservator to specifically handle financial matters and another guardian to address health care and other personal matters.
Appointments of Guardians and/or Conservators in Arizona
Both Guardians and conservators are appointed by a court. The exact process for becoming a guardian and/or conservator depends first on the procedures set out by the specific court overseeing the process. Unique circumstances also impact how a guardianship and/or conservatorship materializes: are you the one seeking to become a guardian and/or conservator or are you the one in need of protection?
In the first instance, you would file a petition with the court. The filing must be served on the potential ward and must set forth why the proposed ward's condition results in the inability to make important decisions. A hearing will be held, and the judge will examine the evidence and make a decision.
In the second instance, absent a pending petition, and in lieu of a family member, living will, or another relevant document, the court will appoint a guardian and/or conservator.
The court takes these matters seriously and will attempt to award the guardianship and/or conservatorship to the best person, but that person may not always be available.
Can a Guardianship or Conservatorship be Contested or Terminated in Arizona?
A petition requesting the court to award a guardianship and/or conservatorship over you or someone you love can be contested. When the petition is filed and served, you can respond, contesting it. Also, to prevent a specific person from being appointed as a guardianship and/or conservator, you can file competing petitions. The rules vary according to jurisdiction, so speaking with an attorney is your best way to avoid delays and errors in the process.
As for termination, guardianships and/or conservatorships are typically made as a permanent arrangement. They are terminated upon the ward's death, recovery from the illness or injury that had incapacitated them, or, in the case of a minor, when the ward reaches the age of majority.
There are times, too, when a court will remove a guardian and/or conservator when cause is found (like abuse). That said, simply because the guardian and/or conservator is removed does not remove the guardianship and/or conservatorship. Another guardian and/or conservator will be appointed unless the reason for the guardianship and/or conservatorship no longer exists.
Contact an Estate Planning Attorney to Understand Guardianships and Conservatorships in Arizona
Guardianship and conservatorships are serious, and the ward can lose control of some or all of their financial, medical, and personal matters. Speaking to an attorney to determine what makes sense in your unique situation is critical. At Duffield Adamson & Helenbolt, our estate planning attorney will address your concerns and guide you through the process. Contact us online or at (520) 792-1181 to schedule a consultation.