Guardianships and Conservatorships: When Are They Needed or Avoidable?
- posted: Dec. 30, 2020
- Estate Planning
When a loved one becomes incapacitated or otherwise unable to take care of themselves, Arizona law provides for appointment of a guardian or conservator to assume responsibility for their protection. A guardianship or conservatorship may be appointed where an adult is suffering from Alzheimer's disease, dementia, brain damage, developmental disability, severe mental illness, drug addiction, stroke or other debilitating injuries or diseases. The initial question to be answered is whether such appointments are truly necessary or whether the same objectives can be accomplished in other ways.
A guardian is appointed by a court to make personal and medical decisions on behalf of an incapacitated adult, who is called the "ward." Essentially, guardians have the same legal rights and duties as parents of minor children, except that guardians cannot be held legally responsible for their wards’ harmful acts to others. A conservator is appointed to handle financial concerns for an adult whose assets will otherwise be in danger of loss or dissipation. A conservator is charged with fiduciary duties comparable to those of an executor or trustee of an estate.
Sometimes a guardian alone is sufficient, such as when the incapacitated adult has a simple source of income like Social Security and has no investments requiring oversight. In other situations, a conservator may be enough, such as when the adult can handle day-to-day affairs and take care of their personal needs but does not have the mental capacity to deal with finances. In certain instances, either of these appointees may take on both types of duties.
However, the court processes for creating guardianships and conservatorships are not simple. Judges must give careful scrutiny to the need for these appointments and to the qualifications and potential adverse interests of those who seek these roles. Extensive information and testimony may be required. The judge may have to resolve conflicts between interested relatives and perhaps objections by a ward who claims there is no need for such measures. In addition, a guardianship or conservatorship may be limited in scope, which creates the potential for future disputes over whether the appointee has exceeded their authority.
Guardianships and conservatorships can often be averted through detailed and thorough estate planning. In preparing for the possibility of your becoming mentally or physically incapacitated, you can execute powers of attorney to appoint people to make health care and financial decisions and to otherwise provide for your care. You can also create trusts designed to provide funds for your health and financial well-being should you become incapacitated. These documents not only give you the choice of appointees but also allow you to specify the situations when the powers or trusts take effect.
If you would like to prepare an estate plan that makes provisions in case of your potential incapacity, the Law Firm of Joseph M. Udall, PLC in Mesa, Arizona, can help. For a free consultation, call us at 480-500-1866 or contact us online. Saturday and evening appointments are available.