Elder Law

Unfortunately, for some individuals there comes a time when they can no longer handle their finances and/or make competent decisions regarding medical care or general well being. This may be due to any number of causes such as a stroke, an accident, dementia in one form or another, or a mental disease. Regardless of the cause, that person now needs someone or some institution to make decisions for them regarding their finances and/or their daily care. In Arizona, those court-appointed persons or organizations are conservators and guardians. Often the same person or organization is both guardian and conservator. Examples of organizations in this context are Guardianships of Southern Arizona, the Pima County Public Fiduciary and the Arizona Veterans Service Commission.

Guardianships And Conservatorships

Conservator: generally has control over all finances although power can be limited to one transaction or made subject to prior review by the court.

Guardian: generally has all of the powers of a parent in making decisions about care, placement or medical treatment of an individual.

In Arizona, guardianships and conservatorships are governed by statutes known as Title 14. This section of the law handles all legal incapacities, including minor children. Under Title 14, an individual or organization may petition the court to be appointed the guardian and/or conservator of a person they think needs assistance. That person is referred to as the proposed ward. Once an application is made to the court for the appointment of a conservator and/or guardian, the court will appoint an attorney to represent the proposed ward to ensure that their legal rights are protected and that they have a voice in the process. To provide the court with a medical/mental evaluation, a physician or nurse will be appointed to examine the proposed ward and report to the court on the condition of the individual. The court will also appoint an investigator, usually a layman trained by the court, to interview the individual and anyone else they think can contribute to an understanding of the individual's condition. That investigator also reports to the court.

A hearing is held before a commissioner or judge who reviews the reports from the physician and investigator, listens to testimony from the court-appointed attorney and other interested parties, and then decides if the proposed ward needs the guardian and/or conservator, and if so, who can best serve in that capacity. The commissioner or judge will also impose any restrictions deemed appropriate in the particular circumstances. The court will require a bond be posted in the amount of the assets of the ward plus one year's worth of income unless the assets and income are obviously smaller than the expenses of the ward. Assets placed under court control do not need to be bonded.

If the guardian needs the authority to place their ward in a locked psychiatric facility for treatment of a mental disease, the court may grant that power after hearing sufficient evidence to show that the need exists. This authority should be requested in the initial petition to the court.

The court reviews these appointments annually requiring written reports and in the case of a conservator requires an annual accounting of income and expenses to ensure that the ward is being adequately protected.

For More Information

  1. Guardianships: Why, When, How?
  2. Asset Protection Planning When Qualifying For Medicaid

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