Guardianship and conservatorship are legal terms that are often used interchangeably. While they both concern the legal authority to care for a minor or an incapacitated adult, there’s actually an important distinction between the two. Guardians are appointed to make important health and welfare decisions, and conservators are appointed to handle someone’s assets and financial affairs. In practice, most adults who need to care for a minor or incapacitated adult are appointed guardian and conservator, but it’s not uncommon to see situations where only one type of legal authority is conferred.
Who Can Be the Subject of a Guardianship or Conservatorship?
Guardianships and conservatorships are established to care for minors and incapacitated adults. Defining a minor is self-explanatory, but defining an incapacitated adult involves some interpretation of the law. The state of Arizona offers the following guidelines to help distinguish what qualifies as an incapacitated adult:
“Incapacitated person” means 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 lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his person (ARS 14-5101).
In guardianship proceedings, the minor or incapacitated adult is referred to as a ward. In conservatorship proceedings, the minor or incapacitated adult is referred to as a protected person.
Who Can be Appointed as a Guardian or Conservator?
Any individual or entity (e.g. a private fiduciary who holds a license and is paid for their services) can serve as a guardian or conservator. If there are no suitable candidates, the court can appoint a public fiduciary (though public fiduciaries generally don’t serve as guardians for minors). In any case, the party petitioning to be conservator or guardian will need to pass a background check.
If the ward or protected person is a minor, the court will appoint an individual or entity based on the best interests of the minor. When the minor is 14 or older, the minor has the right to nominate who they’d prefer to be their guardian and/or conservator.
For incapacitated persons, the court will still consider the best interests of the ward or protected person, but the judge will appoint the guardian or conservator on a priority-basis. Arizona law lists the following priority schedule for appointment:
- An individual who is already appointed as guardian for the ward or conservator for the protected person in another state
- An adult who is nominated by the ward or protected person (providing the incapacitated person has the capacity to make a rational decision)
- An adult who is nominated in the incapacitated person’s power of attorney
- The incapacitated person’s spouse
- The incapacitated person’s adult child
- The incapacitated person’s parent(s)
- An adult who is nominated in the incapacitated person’s last will and testament
- A relative whom the incapacitated person has lived with for more than 6 months
What are a Guardian’s Responsibilities?
A guardian’s powers can be limited or general. Limited guardianships are given authority over specific things such as making important medical decisions or providing living arrangements. General guardianships are essentially offered the same rights, duties, and powers as someone’s parent (ARS 14-5312). General guardians do not, however, have the authority to place a ward in an in-patient mental health care facility. To do that, the guardian would need to request and receive special permission from the court.
What are a Conservator’s Responsibilities?
Conservators, like trustees, have the responsibilities of a fiduciary—they are responsible for managing someone else’s property with the same standard of care that a prudent person would apply to their own property. Conservators are required to consider the income needs and risk tolerance of the protected person and manage their assets accordingly. Conservators are also asked to keep detailed records of their activities and the protected person’s financial affairs.
As with a guardianship, conservatorships can be limited, general, or even confined to a single transaction. Based on the situation, a conservator can have any of the following responsibilities:
- Execute and deliver instruments
- Defend or prosecute actions, proceedings, or claims
- Employ professionals including agents, financial advisors, auditors, and attorneys, to assist or advise the conservator in the performance of their administrative duties
- Distribute income and/or principle to the protected person and other beneficiaries
- Allocate items of expense or income to the protected person’s estate
- Pay all necessary taxes and fees (including compensating the conservator) incurred in the care, collection, administration and protection of the protected person’s assets
- Contest, settle, or pay claims by or against the protected person by arbitration, compromise, or otherwise
- Borrow funds and advance money to be repaid by the protected person’s assets
- Insure the protected person’s assets against damage or loss
- Insure the conservator against liability with respect to third persons
- Hold securities in a nominee’s name or in other form without disclosing the conservatorship
- Sell or exercise stock conversion or subscription rights, and consent to the liquidation, dissolution, merger, consolidation, or reorganization of a corporation or other business enterprise
- Pay calls and assessments for securities
- Vote a security, in person or by general or limited proxy
- Take an option for the acquisition of an asset, or grant an option involving the disposition of the protected person’s assets
- Enter into a lease (as lessor or lessee) with or without an option to purchase or renew for a term within or extending beyond the term of the conservatorship
- Subdivide, develop, or dedicate land to public use
- Make or obtain the vacation of plats and adjust boundaries
- Adjust differences in valuation on exchange
- Partition by giving or receiving considerations and dedicate easements to public use without consideration
- Order repairs or alterations to buildings or other structures
- Demolish improvements to real estate and property
- Erect new or raze existing party walls or buildings
- Acquire or dispose of an estate asset (including land in another state) for cash or on credit, at private or public sale, and partition, exchange, improve, develop, manage, change the character of, or abandon an estate asset
- Deposit estate funds in a state or federally insured financial institution
- Acquire an undivided interest in an estate asset, even if the conservator holds an undivided interest in the asset
- Participate or continue in the operation of any business or other enterprise
- Receive additions to the estate
- Collect, hold and retain assets of the estate including land in another state, until, in the conservator’s judgment, disposition of the assets should be made
- Invest and reinvest assets
How Do you Become a Guardian or Conservator?
The process begins when an interested party files a petition for guardianship and/or conservatorship with the court. The court will schedule a hearing, and the petitioner will need to serve notice of the hearing to the other interested parties, including the prospective ward or protected person. If the subject is an incapacitated adult, they will need to be represented by an attorney; if they cannot afford one on their own, a public attorney will be appointed for them. The court can also appoint a physician or court investigator to interview the adult and submit a report to the court. Minors don’t require an attorney or physician. At the hearing, the judge will determine whether or not a guardianship and/or conservatorship is warranted, and they will make the proper appointments.
Call Our Guardianship and Conservatorship Team at (480)467-4313 to discuss your case today.