A conservatorship is a legal arrangement where a judge appoints a family member, friend, or organization to handle the affairs of an incapacitated adult. The vast majority of conservatorship cases involve an adult who is in a coma, suffers from advanced dementia or Alzheimer’s disease, or has other serious illnesses or injuries that result in the loss of their mental faculties.
Conservatorships can be established to care for minors, but for the purpose of this discussion we’ll focus on cases where the conservatee (also known as a ward or protected person) is an adult.
Types of Conservatorships
Generally speaking, there are four types of conservatorships that can be established according to Arizona probate law:
In a limited conservatorship, the protected person may need some decision-making assistance with their finances, healthcare, and/or living arrangements, but he or she isn’t fully incapacitated and can still manage some of their own affairs.
A good example would be an elderly adult who can’t handle the complexity of managing their investments, but who possesses enough rational-thinking capabilities to consult with doctors, make important healthcare decisions, and make living arrangements.
In some cases, a limited conservatorship can even be established for a single transaction (like selling a house) or a series of transactions (such as selling assets in a 401k to make monthly income distributions).
As the name implies, a general conservatorship offers the conservator broad, sweeping control over the protected person’s affairs. General conservatorships are often referred to as adult guardianships.
The law provides an expedited solution for emergency situations where the incapacitated adult is in imminent danger of death or serious bodily injury. If the petitioning party can prove that an emergency conservatorship is necessary, the court can appoint an emergency conservator in as little as 24 hours or less.
The emergency conservator is usually appointed for six days, after which the emergency conservator would need to petition for temporary guardianship if he or she needs to retain their decision-making authority until a permanent conservatorship is appointed.
A temporary conservatorship is intended to provide the protected person with an interim conservator until a permanent conservator is appointed (full conservatorship proceedings can take months to complete).
Note that an emergency and temporary conservatorship request must be filed as part of a general conservatorship case. These solutions are intended to provide interim care, not to replace standard guardianship proceedings. Emergency and temporary conservators are usually given a stricter mandate with limited access to assets.
Types of Conservators
Depending on the needs of the incapacitated adult, the court may appoint a conservator of the estate, a conservator of the person, or both. Most conservatorship cases appoint a single conservator to both positions, but it’s not uncommon to see a limited conservatorship with a single type of conservator.
- Conservator of the estate – handles the protected person’s assets and finances.
- Conservator of the person – authorized to make important decisions regarding the protected person’s healthcare, shelter, clothing, and food.
The Conservator’s Responsibilities
Conservatorships are designed to be flexible and adaptive to the protected person’s unique situation and needs, so a conservator’s responsibilities can vary from case to case. That said, general conservatorships tend to come with similar responsibilities. The duties of a conservator of the estate often include:
- Collecting the protected person’s income (investments, retirement, Social Security, etc.)
- Locating and taking control of all assets
- Managing the protected person’s finances
- Paying bills
- Protecting assets from unnecessary risks and preventable losses
- Providing an accounting to the court and to the protected person
- Prudently investing the protected person’s liquid assets
The duties of a conservator of the person often include:
- Arranging for the protected person’s care and protection
- Consulting with the protected person’s doctors and making important medical decisions
- Deciding where the protected person will live
- Ensuring the protected person has adequate clothing, health care, housekeeping, meals, personal care, recreation, shelter, and transportation
- Receiving approval from the court for major decisions that impact the protected person’s health, well-being, and living situation
- Reporting the protected person’s status to the court
Who Can Petition for Conservatorship?
While the laws regarding conservatorships are pretty strict, the requirements for who can petition for conservatorship are surprisingly minimal. The following individuals and organizations have the right to file a petition for conservatorship of an incapacitated adult:
- The incapacitated adult
- A spouse or domestic partner
- A relative
- Any interested state or local agency or entity
- Any friend or interested person to the case
At the conservatorship hearing, the judge will appoint the conservator who is best qualified and is in the best interests of the protected person. Though the petitioner is usually appointed to be the conservator, the judge has the right to choose another conservator if the petitioner isn’t qualified or has a significant conflict of interest. In situations where there are multiple parties petitioning for conservatorship, the court tends to exhibit the following order of preference:
- The spouse or domestic partner
- An adult child
- Other interested parties who are lawfully allowed to serve as the conservator
- A public guardian
The Conservatorship Court Process
If you have a family member or friend who has become mentally incapacitated and needs assistance managing their affairs, here’s how to go about the process of being appointed as their conservator:
1. Hire an Attorney
Conservatorship proceedings can be extremely complex, especially when a general conservatorship is on the table that takes away all of the proposed protected person’s decision-making abilities. It’s important to have an experienced attorney who can represent you and guide you through the process.
2. File the Petition for Conservatorship
You can file the initial petition with the court clerk, in the county where the incapacitated adult lives. You’ll need to pay the filing fee, plus a court fee for the investigator. You’ll also need to submit a certificate of incapacity from the protected person’s doctor or psychologist.
3. Serve Notice and File Proof of Notice
Once the clerk schedules a hearing, you’ll be required to serve notice of the hearing to all interested parties (including the protected person). After serving notice, you’ll need to file proof of service with the court.
4. Attend the Conservatorship Hearing
At the hearing, you’ll have the opportunity to present your case that a conservatorship is necessary, and that you are the best qualified to serve as the protected person’s conservator.
The protected person has the right to contest the conservatorship (usually through his or her assigned attorney), and if there are any interested parties who object to the conservatorship, they’ll have the opportunity to speak, too. If any additional due diligence is required, the judge can schedule a follow-up hearing.
After a successful conservatorship hearing, the court will order the conservatorship and issue a letter of authorization to the conservator. Depending on the situation, the conservator may be required to complete state-approved conservator training before the order takes effect.
Call our Guardianship and Conservatorship team at (480)467-4313 to discuss your case today.