A guardianship is a court proceeding designed to protect the personal interests of an individual who lacks capacity to make responsible decisions concerning his or her care and maintenance.
A conservatorship is a court proceeding designed to protect the property interests of an individual who lacks capacity to make responsible decisions relating to his or her property.
Conservatorship is included under the word “guardianship” in the following discussion.
Please follow the links below to learn more about guardianships and conservatorships in Arizona.
The general definition of a guardianship is a trust relationship between two persons. The law recognizes the power and authority of the guardian to act for and on the behalf of the ward. The ward, is considered by the law as a person incapable of managing his or her own affairs.
The basic definition of a “guardian” is one who has the legal authority and duty to care for another’s person or property due to the other’s incapacity or disability.
A “ward” is generally defined as a person who is under a guardian’s charge or protection.
In all guardianship proceedings, a court must appoint and supervise all guardians. Thus, the need to retain an attorney to oversee the appointment and court proceedings for all guardianship is highly recommended (and in most cases mandatory). Furthermore, in order to protect the ward, the attorney may oversee and monitor the actions of the guardian to ensure that the guardian is always acting in the best interests of the ward.
If the appointment of a guardian is contested, either by the ward or another interested person, the retaining of an attorney is also highly recommended. A guardian may be removed through court proceedings and a court order. An appointed guardian may be removed by a court if it is in the best interests if the ward.
Furthermore, a guardian may either be removed by a court or the guardian may resign if the ward’s incapacity has terminated. Thus, once the ward is deemed to have legal capacity and no longer incapacitated, the guardianship and role of the guardian is extinguished.
The purpose of guardianships is to safeguard and protect the interests of those persons who are deemed incompetent or incapable of managing their own affairs. It is the responsibility of the courts, and society in general, to be vigilant in assuring that the rights of such incapacitated persons are properly protected.
In general, in Arizona there are two (2) types of guardianship relationships. First, a “guardianship of the person” enables the guardian to make personal decisions for the ward. Second, a “conservatorship of the estate” enables the conservator to manage, maintain, and administer the estate of the ward. (protected person.)
Below are various examples and definitions of other forms of guardianships.
A guardian ad litem is a person, usually an attorney, who is appointed by the court to appear in a lawsuit on behalf of an incompetent person or a minor party.
A guardian by election is a person who is chosen by a child when he or she would otherwise be without one.
Practice Point: According to Arizona law, Arizona courts may appoint the guardian nominated by the minor if the minor is fourteen (14) years old or older, and if the court finds that the appointment is in the best interests of the minor. Before the final court appointment, however, if the nominated guardian is unrelated to the minor, the court will require the nominated guardian to submit a full set of fingerprints to the court and submit to a criminal background screening. The nominated guardian shall bear the cost of obtaining the criminal background information.
A special guardian is a person who has special or limited powers over the ward’s person or estate. Examples of special guardians are those persons who have custody of the estate but not the person, or those persons who have custody of the person but not of the estate (including guardians ad litem).
A limited guardian is a person who, as guardian, has rights, duties, and powers that are strictly limited to those specified in a court order.
A testamentary guardian is a person who is appointed by a Will for the person and property of a spouse or minor child.
Practice Point: According to Arizona law, a parent of an unmarried minor may appoint by will a guardian for the minor. The testamentary appointment becomes effective upon the guardian’s acceptance of the appointment in the court in which the parent’s will is probated. If both parents are deceased, the effective appointment is that person nominated by the parent who died later in time. However, Arizona law also allows for a minor of fourteen (14) or more years to object to the appointment of the testamentary guardian. The minor may file an objection to the appointment before the appointment is accepted by the testamentary guardian or within thirty (30) days after the acceptance of the appointment. After the minor has filed his or her objection, the court may review (and even reverse) the appointment if the minor nominates another suitable person and provides evidence that the other persons’ appointment as guardian is in the minor’s best interests.
Additional Practice Points: According to Arizona law, a person may only become a guardian if he or she accepts the testamentary appointment of guardian or if the court legally appoints that person to act as guardian. The role of guardian for a minor continues until the minor attains the age of 18 and operates without regard to the location from time to time of the guardian and the minor.
Guardianships & YOU
Would YOU ever need to appoint a guardian or would YOU ever need to have a guardian appointed for YOU?
Many clients appoint testamentary guardians for their minor children in their Last Will & Testament. The appointment of a testamentary guardian for your minor children is necessary and of the utmost importance in your estate planning documents. On the other hand, many clients avoid guardianship proceedings by executing comprehensive Powers of Attorney and other estate planning documents. In essence, with the execution of a legal and complete Power of Attorney – you are nominating a “guardian” to act on your behalf if and when you become incapacitated.However, if you (or a loved one) become incapacitated without any protective estate planning documents in effect, then guardianship proceedings may be instituted on your (or their) behalf. In these situations, attorneys are usually retained to initiate and monitor the guardianship proceedings. If you believe that someone you know is in need of a court-appointed guardian, please contact your estate planning attorney immediately.
Who is considered an “Incapacitated Person” as defined under Arizona law?
Under Arizona law, an “incapacitated person” is any person who is impaired by reason of mental illness, mental deficiency, mental disorder, physical illness or disability, chronic use of drugs, chronic intoxication or other cause, except minority, to the extent that he or she lacks sufficient understating or capacity to make or communicate responsible decision concerning his or her person. Thus, the term “incapacitated person”, used to define those persons who may need an appointment guardian to manage their affairs, is quite expansive. Therefore, if you know of someone who may be considered an “incapacitated person” as defined under the law, the appointment of a guardian may be necessary to protect that person.