| • |
Guardians of minors now have a specific duty to "become
or remain personally acquainted with" the minor for whom
they have accepted responsibility. Other duties and powers of
guardians of minors have also been spelled out, including the
power to consent to the minor's marriage or adoption, handle small
sums of money without the appointment of a conservator, and establish
the minor's place of residence (in Arizona or outside the state). |
| • |
A well-drafted power of attorney may nominate the agent as
guardian or conservator in the event that the power of attorney
proves to be insufficient. Courts have always been willing to
consider such nominations, but now the law expressly provides
a priority for the person identified in the power of attorney
(who will ordinarily, but not necessarily, be the attorney-in-fact
named in the same instrument). The nominee in a power of attorney
holds third position in the priority list, after a person appointed
as guardian or conservator in another jurisdiction and a person
nominated by the ward in a document other than the power of attorney. |
| • |
Courts have long felt free to ignore the priority list in
appropriate cases (where, for example, a spouse has misappropriated
property of the ward) and appoint someone lower on the list. Now
the authority to bypass the priority list is clearly stated. |
| • |
Conservators are now expressly authorized to make gifts from
the ward's estate where there is a prior pattern of gifting. The
new law permits such gifts even if there has not been such a pattern,
if there are potential tax savings. The requirements in such cases
are much more clearly spelled out than in the prior law; Court
approval is required, but the factors which the Court (and the
conservator) must consider have been listed. |
| • |
Bonds are required in all conservatorship cases, and the new
law does not change that. However, where the ward is in a care
facility and the fixed expenses of care are a substantial portion
of the estate, the size of the bond can be reduced to reflect
those expenses. |
| • |
Private fiduciaries are given clear priority (albeit at the
bottom of the list) to serve as guardian and/or conservator. Under
the existing law, the authority of private fiduciaries to apply
for guardianship and conservatorship, or to be appointed, was
assumed but not specifically set out. |
| • |
The power (and sometimes duty) of the conservator to support
not only the ward but also the ward's dependents (children and
spouses, for example) has been clarified. When the ward is a minor
child, the new law expressly permits funds to be used even though
expenditures may also benefit the rest of the family, at least
in some circumstances. For example, the conservator may consider
the "extraordinary custodial responsibilities undertaken
by the parent or parents" in making distributions, and might
even decide to pay a parent for care-taking which would ordinarily
be considered part of the parent's duties. The new law also provides
that payments for minor children may be made even though there
is an "incidental benefit to other members of the child's
household." In other words, if a therapy pool or addition
to the home is of significant benefit to the minor, it can be
paid for from conservatorship assets even though parents and siblings
also gain the use of the pool or building addition.
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