When an elderly individual loses the capacity to rationally manage their finances, a judge can appoint a conservator<\/a>\u00a0to step in and take control of their assets. The extent of the conservator\u2019s authority will depend on how mentally incapacitated the elderly individual is. The court can appoint a conservator to handle a single transaction (such as selling the family home), a limited set of activities (such as paying the bills), or the court can issue a broad mandate to manage all of the individual\u2019s assets. In conservatorship proceedings, the incapacitated adult is referred to as the protected person<\/a>.<\/p>\n According to Arizona law (ARS 14-5101<\/a>), an adult is considered to be incapacitated when they lack the capacity or sufficient understanding to make or communicate rational decisions regarding their well-being. In most cases, incapacitation is caused by one of the following impairments:<\/p>\n It\u2019s important to note that an elderly individual\u2019s poor financial choices don\u2019t necessarily qualify them for conservatorship. To be considered incapacitated, the elderly individual will need to have one or more of the impairments listed above. A recent history of financial mismanagement or susceptibility to fraud may be an indicator of mental deficiency, but on its own it\u2019s not enough to warrant a conservatorship.<\/p>\n A conservator has the same fiduciary duty<\/a>\u00a0as a trustee. In both cases, the individual managing the assets is required to exercise the same prudent administration that a regular investor would when handling their own assets. Conservators also have a duty of care to the protected person, and they\u2019re required to place the needs of the protected person before their own.<\/p>\n In a conservatorship, the conservator could have any (or all) of the following rights and responsibilities:<\/p>\n A court-appointed conservatorship is designed to last as long as the protected person needs it. If the protected person is temporarily incapacitated (e.g. a medically-induced coma, recovering from an illness, etc.), then the conservatorship will end with the protected person regains their decision-making capabilities. If the incapacitation is permanent (senility, dementia, Alzheimer\u2019s disease, etc.), the conservatorship will end with the protected person dies.<\/p>\n Considering how conservatorship strips someone of their decision-making abilities, conservatorship should be the final option. It\u2019s always better for the elderly individual to willingly authorize someone to take control of their finances. As long as the elderly individual has a sound mind, they can authorize a family member or friend to handle their finances with a durable power of attorney<\/a>. The power of attorney can offer broad access to their assets, or it can limit the agent\u2019s authority to certain assets and activities. A power of attorney can bestow immediate authority, or it can withhold the authority until the testator becomes mentally incapacitated. Issuing a power of attorney is sometimes referred to as planned conservatorship or guardianship, and it does not require formal court proceedings.<\/p>\n Where a conservator\u2019s responsibilities are limited to handling a protected person\u2019s finances, a court-appointed guardian<\/a>\u00a0is given far-reaching authority over all the protected person\u2019s affairs (healthcare, living situation, assets, etc.). Guardianships can be limited to certain activities, but most of the time guardians are given a fairly broad mandate to care for the protected person (also called the ward in guardianship proceedings). Generally speaking, a guardian has the same rights and powers that a parent has over their biological child.<\/p>\n Fill out the form below to get your consultation and discuss your best legal options.<\/p>\n <\/p> When is an Elderly Individual Considered to be Incapacitated?<\/h2>\n
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What Can a Conservator Do?<\/h2>\n
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When Does Conservatorship End?<\/h2>\n
An Alternative to Conservatorship<\/h2>\n
What is the Difference Between Conservatorship and Guardianship?<\/h2>\n
Call our Guardianship and Conservatorship team at (480)467-4313<\/a> to discuss your case today.<\/h5>\n
Schedule Your Consultation<\/strong><\/h3>\n
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