Conservatorship and Guardianship

Conservators have court-ordered authority and responsibility to manage the affairs of those who can no longer make their own decisions about finances or health care. If the incapacitated person planned ahead and signed Financial Powers of Attorney and Medical Powers of Attorney, that person won’t need a conservator because the person named in those documents can take charge. However, if no planning has been done – a common situation – then family members must ask a court to appoint a conservator or guardian.

In Arizona, the laws of Conservatorship and Guardianship are codified in Title 14, Chapter 5 of Arizona’s Revised Statutes at A.R.S. § 14-5101 et seq. The Statutes address Conservatorship and Guardianship of incapacitated, disabled and minor persons, and discuss how to prepare powers of attorney. The following is some general information about conservatorship.

Conservatorship vs. Adult Guardianship

In some states, conservatorships are called adult guardianships, but the terms mean roughly the same thing. For the rest of this article, we will use the term “conservatorship” to refer to adult guardianships and conservatorships.

If a court appoints someone to take care of financial matters, that person is usually called a “conservator of the estate,” while a person in charge of medical and personal decisions is a “conservator of the person.” An incapacitated person may need just one type of representative, or both. The same person can be appointed to take both jobs. Both types of conservators are supervised by and held accountable to a court.

Generally, conservatorships are established for people who are in comas, suffer from advanced Alzheimer’s disease, or have other serious illnesses or injuries.

Pros and Cons of a Conservatorship

Conservatorships are time-consuming and expensive; they often require court hearings and the ongoing assistance of a lawyer. The paperwork can also be a hassle, because the conservator must keep detailed records and file court papers on a regular basis.

All court proceedings and documents are a matter of public record, which can be an unwelcome intrusion for someone who values independence and privacy.

Conservators are subject to court supervision, which provides a powerful safeguard for an incapacitated adult’s property. To prevent conservators from mismanaging the property or otherwise taking advantage of the people they are helping, most courts require conservators to provide periodic reports detailing their actions. Many courts also require the conservator to seek permission before making major decisions, such as selling real estate (for a financial conservator) or terminating life-support (for a conservator in charge of health care decisions).

In addition, a financial conservator must often post a Bond (a kind of insurance policy that protects the conservatee’s estate from mishandling). The bond premiums are paid from the conservatee’s assets — and are an unnecessary expense if the conservator is competent and trustworthy.

Occasionally, however, a conservator will mismanage a conservatee’s assets or make poor choices about the conservatee’s health care. Although each state has rules and procedures designed to prevent such abuses, few have the resources to keep an eye on conservators and follow through if they spot trouble. Many cases of incompetence or mistreatment go unnoticed.

Avoiding Conservatorship

The best way to avoid a conservatorship is for an older person to prepare durable powers of attorney before a health crisis occurs. That way, someone handpicked will be able to step in to make financial and medical decisions if necessary.

The Court Process

Anyone – including the proposed conservatee, family members, and friends – may object to the conservatorship in general, or to the specific choice of conservator. Someone who wants to block a conservatorship must file papers with the court, inform all interested parties (the proposed conservatee, family members, and possibly close friends), and attend a legal hearing.

When someone begins a conservatorship proceeding, a judge must hear evidence on the person’s mental capacity. If the judge concludes that a conservator is necessary, he or she will appoint one – commonly, the spouse or adult child.

It’s rare, but sometimes several family members or friends may vie for the job. If that happens, the judge follows preferences established by state law. Most states give preference to the conservatee’s spouse, registered domestic partner, adult children, adult siblings, or other blood relatives. But a judge who thinks someone else is best for the job may pick that person.

Without strong evidence of what the conservatee would have wanted, it is unlikely that a nonrelative would be appointed conservator if a relative is available to serve. Because of this, conservatorship proceedings may cause great heartache if an estranged relative is chosen as conservator over the conservatee’s partner or close friend. If no one suitable is available to serve as conservator, the judge may appoint a public or other professional conservator.

How Conservators Are Compensated

Conservators are reimbursed for expenses, and paid for their services, from the assets of the person they are taking care of. Payments must be “reasonable” in the eyes of a court. Generally, payments are only made to professional or public conservators, but a family member who has been appointed conservator may also seek compensation by making a request to the court.

Financial Support for Someone Under a Conservatorship

A conservator isn’t required to support the conservatee, just to manage the conservatee’s own assets and make personal decisions for him or her. A financial conservator does have the responsibility to seek all financial benefits and coverage for which the conservatee may qualify. These benefits may include Social Security, medical insurance, Veterans Administration benefits, pension and retirement benefits, disability benefits, public assistance, and Supplemental Security Income. When needed, close family members (including the conservator) often use their own money to help support a conservatee.

Ending a Conservatorship

A conservator must act until the court issues an order ending this responsibility. This ordinarily happens when:

• the conservatee dies
• the conservatee no longer needs this level of assistance
• in the case of a financial conservatorship, the conservatee’s assets are used up, or
• the conservator resigns or can no longer handle the responsibilities. In this situation, the conservatorship itself does not end, but someone else takes over the conservator’s duties.

If you have questions regarding Conservatorship and Guardianship, Elder Law or Estate Planning, whether transactional or litigation-based, please contact the attorneys at Lancer Law at (520) 352-0008 or [email protected]. Mention this web page for a FREE CONSULTATION.