Guardianships And Conservatorships
Protecting your loved ones is important. If you have a family member or loved one who is incapable of making his or her own decisions, you can provide support in the form of a guardianship or conservatorship. These legal protections can also be used in some child custody cases.
What is a guardianship?
A legal guardianship is an appointment made by the court that can give a person the authority to make personal decisions for a minor child or incapacitated adult in your life. The person who has the authority to make those decisions is the guardian. The minor child or incapacitated adult is called the ward.
As a guardian, you’ll have powers and responsibilities similar to those of a parent—and in the same way, you must make decisions that are in the best interests of your ward. A guardian must always make sure that their ward is living in the least restrictive environment in which the ward can remain safe. A guardian must also submit a written report to the court annually on the date of their appointment. The report must include information on the health and living conditions of the ward and a current physician’s report.
A guardian may make personal decisions for the ward relating to:
- Living arrangements
- Social activities
- Authorization or withholding of medical or other professional care, treatment, or advice
Financial matters fall under a different—but similar—legal category: a conservatorship.
What is a conservator?
A conservator is someone who has been appointed by the court to have the authority to manage the financial affairs of a minor child or incapacitated adult who is not able to manage their own property or finances. A conservator may also be referred to as a property guardian. The minor child or incapacitated adult is called the protected person in this arrangement.
The courts may appoint conservators for varying lengths of time. Although appointments often are permanent, until revoked, some appointments may be restricted to one transaction or to a limited purpose.
Maintaining a conservatorship is a serious responsibility. Conservators must act in a manner consistent with that of a prudent person dealing with the property of another. In addition, a conservator must keep detailed and accurate records of all of the financial information of the protected person. This includes:
- Filing an inventory of the estate of the protected person
- Annually filing with the court an accounting of the administration of the estate that accurately reflects every financial transaction that occurred during the accounting period
A conservator may invest funds of the protected person’s estate and distribute sums necessary for the support, care, education, or benefit of the protected person. Importantly, the conservator may only use the protected person’s money for the benefit of the protected person.
A conservatorship can sometimes be avoided if an adult has executed a valid durable financial power of attorney enabling another person to manage their assets. Or, if the incapacitated adult has a trust, a conservator may only need the limited power to retitle the assets to the name of the trust, so the trustee can then manage the assets for the benefit of the incapacitated person.
Types of guardianships
There are various ways to set up a guardianship, the benefits of each should be discussed with your attorney.
Permanent guardianships can be made for adults who are deemed incapacitated. Incapacitated means that the person lacks sufficient understanding or capacity to make or communicate responsible decisions concerning their own well-being as a result of any of the following:
- Physical illness or disability
- Mental illness
- Mental disorder
- Mental deficiency
- Chronic use of drugs
- Chronic intoxication
If it is determined by the court that an adult is incapacitated, the court may appoint a guardian to act in the interests of that person, the ward, for either a general or a limited purpose. Notably, permanent guardianships can be terminated if the need for the guardianship is eliminated or resolved.
A temporary guardianship may also be requested:
- For a set period of time of no more than six months, and/or
- When there is an emergency that requires immediate appointment action to protect a person who cannot handle his or her own affairs, or to deal with and protect that person’s income and assets
A temporary guardianship is often used when a parent or guardian of a minor or incapacitated adult wants to grant guardianship rights to someone else for a limited time. This may happen if they will be traveling away from home for a long period of time or if they are suffering from a disability or medical condition of their own that requires treatment or will limit their ability to care for their loved one for some period of time.
Once a temporary guardianship is awarded, the guardian will have the authority to make decisions for the ward’s welfare. The court monitors the decisions being made by the guardian in order to ensure the decision was made for the greater interest of the ward.
In some circumstances, a limited guardianship is the most effective solution. Guardianships are intended to provide only the protections necessary to meet a person’s needs. A limited guardianship spells out exactly what responsibilities the guardian has, which may not include all aspects of their ward’s care as in a traditional or unlimited guardianship.
Rather, incapacitated adults who can care for themselves in some ways, such as managing their living arrangements, do so. Their guardian provides assistance only in areas they are incapable of managing, such as living arrangements or medical care. In these cases, a limited guardianship provides the help the ward needs, while allowing for the flexibility of the ward’s choices.
What is a power of attorney?
Finally, you may have heard of the option of power of attorney, which provides some of the protections of a guardianship or conservatorship but is more limited in scope.
Powers of attorney may be general and durable or temporary; “springing” (that is they only apply after a specific event or circumstance arises, like your incapacity); or limited to a single transaction.
Powers of attorney may also be drafted for specific purposes, like:
- Mental health care
- General medical care
- Financial management
- Parental powers over minors (for limited periods of time)
Because a power of attorney allows another person to act on your behalf, it is a powerful document that should be drafted carefully by an attorney who understands your particular situation.
What is a general power of attorney?
A general power of attorney, sometimes referred to as a financial power of attorney, is often used to allow someone to make financial and other general decisions for you. The person giving the power is called the principal and the person getting the power is called the agent or attorney-in-fact.
A general power of attorney gives the designated agent the authority to make decisions regarding the principal’s financial affairs. This type of power is often used when the principal will be traveling and unavailable to manage his or her own affairs for a period of time, when an elderly person simply wants a trusted family member or friend to manage their affairs for them, or when a person is ill or incapacitated and cannot manage their own financial affairs for that reason.
General powers of attorney can be drafted for various situations and for differing periods of time.
What is a medical power of attorney?
Like a general power of attorney, a medical power of attorney is more limited in scope than a guardianship or conservatorship, but it still carries a large responsibility.
With a medical power of attorney, a person of your choosing can act on your behalf to make certain medical decisions for your care when you are unable to so. This could occur, for example, if you become very ill or incapacitated, or suffer from a serious injury that leaves you unable to speak for yourself. A medical power of attorney is also called a healthcare power of attorney.
Medical powers of attorney can be drafted for various situations and for differing periods of time.
How to create a guardianship or conservatorship
If you have decided to pursue a guardianship or conservatorship, the Arizona Supreme Court offers online access to the legal guardianship forms you may use to file for a guardianship. These are self-service forms, with information contained in them detailing the specific documents you will need to prepare and present your case. There are a number of steps involved in applying for guardianships, and although many individuals apply on their own, many others prefer to have the assistance of an attorney to ensure the process is done properly.
More complicated cases, including those that are contested or deal with incapacitated adults, typically require specialized help from an attorney. Incapacitated adults will be appointed a private or court-appointed attorney. The court will also appoint a physician and court investigator who are required to submit a report to the court after interviewing the incapacitated adult to be protected.
Whatever your case entails, a qualified attorney can represent you in the process and proceedings, can help you gather materials to present with your case, help prepare or review your completed guardianship forms, and advise you on procedures before a court appearance if you chose to represent yourself. In any situation, consulting with an attorney prior to applying for a guardianship or conservatorship is always a good idea.
ARTEMiS Law Firm attorneys have extensive experience in helping clients with guardianships, conservatorships, and powers of attorney. They are especially dedicated to helping families with special needs children and loved ones, as this requires a more advanced and sensitive level of care. If you need help creating a guardianship or conservatorship for your family, reach out to Victoria Ames, Esq., of ARTEMiS Law Firm today to discuss your options.