Articles Posted in Guardianship/Conservatorship

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So, you made it your New Year’s resolution to get your ESTATE PLANNING needs addressed. You’ve got a young family, you are healthy, and you and your spouse are starting to accrue some assets. Here are some important things to consider to protect those assets and plan for your family’s future:

WILL or TRUST – You should consider putting together a WILL or a TRUST to indicate what you want to happen with your property at your death. Nobody likes to talk about death, but it is a reality that unexpected things happen. With a family, you need to consider this possibility and plan for it. Beyond how your assets would be distributed, your WILL can name a person to take over as the GUARDIAN or CONSERVATOR for your children if both you and your spouse die. A TRUST will avoid the necessity of appointing a CONSERVATOR for your minor children because the successor TRUSTEE would take over management of the TRUST assets for the benefit of the children, and do this without court intervention.

POWER OF ATTORNEY – Usually people need to have two different powers of attorney. The first is a MEDICAL/MENTAL HEALTHCARE POWER OF ATTORNEY to permit someone to make medical decisions for you if you are unable to make those decisions for yourself. Absent such medical power of attorney, it may be necessary to obtain a GUARDIANSHIP for you, especially if you are incapacitated for a longer period of time. The second kind is a FINANCIAL POWER OF ATTORNEY. This permits another person to make financial decisions for you, and assist paying your bills while you are incapacitated.

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A guardian is a person, or entity, appointed by the court to provide care for an incapacitated adult who can no longer make personal decisions on their own. Generally, an individual becomes incapacitated when they can no longer make reasonable decisions with regards to their own best interests due to a mental or physical condition. The procedure for appointing a guardian of an incapacitated adult is governed by Arizona Revised Statute § 14-5303. The petition must include basic information about who is to be appointed guardian and why appointing a guardian is needed. In addition, a proposed guardian must provide personal information to the court such as any felony convictions or prior times the individual has acted as a guardian.

A guardian can be an individual, such as a child or spouse, although there is no requirement the guardian has to be a family member. Often times however the ward will feel more comfortable letting someone they already know and trust make decisions for them. For these reasons planning for a guardian is an important step in drafting your estate planning documents as priority can be given to a person nominated by a power of attorney over some others that may be appointed. A guardian can also be an entity such as a private fiduciary. A private fiduciary is a person or business that is licensed to act as a guardian and also receives payment to do so. If the ward has limited funds or no one to act as guardian the court can appoint the public fiduciary. 

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A guardianship occurs when the court appoints a guardian to make personal decisions for a minor child. The guardian is the person who makes the decisions and the child is known as the “ward”. Generally, the guardian of a minor is appointed in two ways. A guardian for a minor can be appointed by a will of a deceased parent or guardian, pursuant to Arizona Revised Statute § 14-5202; or a guardian can be appointed by the court, on petition, pursuant to Arizona Revised Statue § 14-5207.

A guardian can be an individual, or it can be an entity such as a private fiduciary. Although, public fiduciary’s typically do not act as guardians to minors. The guardian of a minor is generally determined by a person whose appointment will be in the best interest of the minor.

Apart from a guardian being appointed by a will, any interested individual can apply to be a guardian for a minor by filing a petition with the court. The petition must give notice to other interested parties then the court will set a date for a hearing on the petition. Generally, notice must be given to any minor who is over fourteen years of age, any person who has had principal care and custody of the minor for the sixty days prior to filing the petition, and to any living parent of the minor. If, after notice and the hearing, the court determines the welfare and best interests of the minor will be served by the requested appointment, the court will appoint the individual who filed the petition.
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Generally, a conservatorship is attained by filing a petition with the Superior Court following Arizona Revised Statute § 14-5404. The Purpose of a conservatorship is to appoint someone (this could be a person or a company) to make financial decision and manage financial matters for a person who is no longer able to make those decisions on their own. In legal terms, this is a person who has become incapacitated. Most commonly, a child applies to be conservator of a parent’s affairs, however, anyone who would be negatively impacted by financial mismanagement of a person’s estate can apply for a conservatorship, it does not need to be a relative or family member.

In order to be appointed as conservator, the person asking the court to appoint them must provide personal information to the court. Some of the information to be provided includes any criminal history that person may have, if that person has acted as a conservator before and what priority does the person applying have to be appointed, in addition to other information. In addition, the person applying must provide information about the incapacitated person, their assets, and why they need to be protected. A conservator may be appointed on a temporary or permanent basis, and the nature of the conservatorship is fully set forth in the letters of appointment. 


If a conservator is appointed, they have the responsibility to the protected person of a fiduciary relationship. This means the conservator must always act prudently in dealing with the financial matters and property of a protected person. In addition to this standard of care, a conservator has the duty to keep accurate and thorough records of all the financial dealings and information on behalf of the protected person.
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Acting as a conservator for a minor is a difficult but important task. A conservator must use the assets of the minor only for the minor’s support, care, education or benefit and never for the benefit of the conservator. If a conservator is misusing a minor’s funds in some cases they can be exposed to potential personal liability or court sanctions.


The parents or guardian of a minor child may petition the court for a conservatorship for a minor under several circumstances. Those circumstances are set forth in Arizona Revised Statute § 14-5401. While this list is not exhaustive, the general circumstances are as follows:

– The minor may own property that needs management, or is otherwise uncollectable due to the minority.
– The minor may own money or funds that need management, or are otherwise uncollectable due to the minority – The minor may have business or affairs that may be put at risk or wasted due to the minority.
– The minor may have funds set up for the minor’s support or education that need management and protection.
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As grandparents, parents or other family members grow older, they often get to a place where they need the assistance of others to make decisions regarding their person or the property. At those times when prior planning has not been accomplished or is not sufficient, Court intervention may be necessary in the form of a guardianship and/or conservatorship.

A guardian is a person appointed by the Court to make decisions for a Ward in regards to their health and where they live. A conservator is a person appointed to assist with making decisions about the Ward’s property and income.

Many times, these kinds of issues are resolved ahead of time with a healthcare power of attorney (for health matters) or a financial durable power of attorney (for financial issues). Even when these documents are put into place, it may still be necessary to involve the Court for any number of reasons, including refusal by the person needing assistance to consent to being moved, or because the healthcare power of attorney did not include mental health powers (giving the agent the right to commit a person to a mental healthcare facility), or because an institution refuses to acknowledge the power of attorney. Many other times, people simply have not engaged in prior planning in the first instance so that the only means to assist your family members is through the courts.

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Previously,we wrote about important changes taking effect on January 1, 2012 for those who serve in a fiduciary capacity. Click here for that article. A fiduciary’s compensation is often the subject of controversy and a great deal of acrimony can develop between the interested parties. To help provide guidance, especially within guardianship and conservatorship proceedings, the probate code is changing to give guidance on fiduciary compensation. Under the new A.R.S. § 14-5109 all approved fiduciary compensation must be “reasonable and necessary” and is applicable to those serving as guardians, conservators, and guardians ad litem, The statute is also applicable to attorneys who by virtue of representing a party will be seeking compensation from the estate of the protected person or ward.

The new statute requires the Court to consider the following factors when ruling upon pleadings seeking approval of compensation:

  1. Whether the services provided any benefit or attempted to advance the best interest of the ward or
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I spoke with my niece the other day. She is a new mother and had some questions about what kinds of basic estate planning she should consider. In her case, her family is just getting started and has few assets. However, with the birth of her son, she is concerned about who would care for him or make medical or financial decisions for him if she and her son’s father were suddenly deceased. Due to the fact that her son’s care was her primary concern, and there were few assets, I recommended to her that she needed to do just basic estate planning. For her, this would entail putting together a Will, a living will, a health care power of attorney, and a financial power of attorney. These four documents operate together and provide a flexible, essential estate planning package.

The Will, of course, lets my niece direct whom will receive her property upon her passing. More importantly, though, it also lets her nominate a guardian and conservator for her son. A guardian is a person appointed to make decisions about a ward’s person and care. A conservator is a person nominated to make decisions about a ward’s money or assets. The person she nominates will still need court approval. However, the nomination gives that person the highest priority and the court will not permit a person with lower priority be appointed unless the nominated person chooses not to accept the nomination or is shown to not be a fit and proper person.

The Living Will is a document which allows my niece to make choices about her health care if she is unable to communicate them herself (for instance, if she is in a coma). The Living Will typically covers a wide range of eventualities. However, anything not covered by the Living Will, can be addressed by the person my niece appoints as her agent under the Health Care Power of Attorney. She will want to appoint someone she trusts, and someone who knows and understands her health care wishes. In my niece’s case, because she is not married to the father of her child, this would be very important because her significant other does not have any legal right to consent to her medical treatment in the absence of being nominated as her agent under the Health Care Power of Attorney. Because my niece is the primary caregiver for her son, protecting my niece in this way also protects her son.