The court establishes Arizona guardianships for people who need assistance with medical decisions, and establishes Arizona conservatorships for people who need assistance with financial decisions. While the process for establishing both is substantially the same, the duties and obligations of the two are entirely different. Guardians can handle up to $10,000/year for a ward without a conservatorship, however beyond that dollar amount, they are only able to handle medical issues; and conservators have no authority to handle medical issues, only financial matters.
Arizona guardians are court appointed to make another person’s health care decisions. While they are extremely limited in what they are able to exercise financially, they are responsible for making appropriate medical care and living arrangements. The court can tailor a guardian’s responsibilities to fit the circumstances, but the range of authority granted to guardians includes:
• Arranging an appropriate living situation based on the ward’s needs, abilities and financial resources.
• Placing the ward in an assisted living facility or skilled nursing facility, if necessary.
• Making sure the ward has appropriate and sufficient clothing.
• Making sure the ward receives appropriate medical care.
• Reporting to the court about the ward’s health, welfare and status.
Courts will only appoint a guardian if the proposed ward lacks the capacity to make appropriate medical decisions. Because incapacity is a legal status, it can be difficult to accurately determine whether another person truly lacks capacity. Family members and friends should ask the following questions when determining whether somebody requires a guardian:
• Does he/she have difficulty doing familiar tasks?
• Can he/she communicate clearly?
• Does he/she take medications as directed?
• Does he/she have extreme mood swings for no apparent reason?
• Does he/she become easily agitated, aggressive or combative?
• Does he/she lose things often or put things in inappropriate places?
• Does he/she forget where he/she is?
• Can he/she attend to and provide necessary food, shelter, clothing and medical care?
A guardian can only obtain outpatient mental health care for a ward. Under a standard Arizona guardianship, guardians cannot obtain inpatient mental health care for a ward. Upon petition, however, courts may grant a mental health guardianship, which is valid for one year, and allows guardians to obtain inpatient mental health treatment for wards.
Conservators are court appointed to make financial decisions for somebody who lacks the capacity to do so personally. Once appointed, conservators never have authority to make medical decisions for wards, but they have a wide range of authority over financial and legal issues, including:
• Paying debts and expenses.
• Bringing or defending legal actions.
• Making an inventory indicating the fair market value of the ward’s assets.
• Prudently investing.
• Acquiring or disposing of property.
• Handling insurance claims.
• Preserving and protecting estate property.
• Paying income and property taxes.
• Providing the court with an annual accounting of every expense.
Where an individual requires some assistance, but not a full conservatorship, the court can make limited arrangements to fit the particular circumstances. For example, the court can authorize a single transaction to re-title a bank account in joint tenancy or transfer assets to a trust. Just like with full AZ conservatorships, however, these limited arrangements require a court hearing and judicial oversight.
The court will only appoint a conservator for people who do not have capacity to manage their own finances. Oftentimes this incapacity is due to the aging process, but it can also stem from illness, disability or substance abuse. Families questioning whether they should seek a conservatorship should begin by asking:
• Can he/she handle every day financial issues, such as writing checks or balancing a checkbook?
• Could he/she be easily persuaded to give away money or property?
• Does he/she have a grasp of what and where his/her assets are?
What Happens if an Agent Under a Power of Attorney Becomes Unable or Unwilling to Act on Behalf of the Principal?
While those who make advance preparations decrease their likelihood of requiring a conservator, even those with powers of attorney may require a conservatorship if the agent under the power of attorney becomes unable or unwilling to act. Similarly, a conservatorship may be necessary for a person with a power of attorney, but who prevents the agent from assuming any responsibility. Working with a conservatorship attorney to establish an Arizona conservatorship may be the only way to protect an individual who is incapable of making wise financial decisions.
When creating a power of attorney, one option is to immediately grant the agent authority to act on the principal’s behalf. Another option is to create a “springing” power of attorney, which only takes effect in the event that the principal loses capacity. Principals should consider their specific goals when determining which type of power of attorney is most suitable to their situation.
Principals under Arizona powers of attorney can revoke the power of attorney at any time, so long as they have capacity. A power of attorney that is not revoked dies with the principal, except for circumstances where funeral and burial decisions need to still be made.
Call Guardianship and Conservatorship Attorney Colton Johnston at (480)467-4313 to discuss your case today.
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