When a person is no longer able to manage his or her own affairs, it may be necessary for a court to appoint a guardian (of the person) or conservator (of the estate). Who should be appointed? In most states the courts start from the presumption that family members should serve—but the highest priority usually goes to the person selected by the incapacitated person. That is not always the way things turn out, however.

There are at least three ways an incapacitated person might have input on the selection of a guardian or conservator. Once a petition is filed an attorney, a court investigator or the court itself might ask the proposed ward who he or she prefers to have act as guardian and/or conservator. In some cases the ward might have expressed a preference well before the need ever arose. And in some states, simply signing a durable power of attorney is taken as a preference by the signer for who should be appointed if the need later arises.

All three standards applied to Karla Iwen, a Minnesota woman. She had named her son Heinz Iwen as her agent in a durable power of attorney, and had specifically included a request that he be appointed if a conservatorship was ever contemplated (at the time Minnesota used the term "conservatorship" to encompass both personal and financial matters, but has since adopted the same language used in Arizona--guardianship is over the person, conservatorship over the estate). She also told the court that she wanted Heinz appointed.

The reason the issue even came before the probate court was that her other son, Thomas, had filed a petition to be appointed as her conservator. He had watched her decline while living at home, and was concerned for her safety and welfare. He did not think his brother Heinz was taking good care of their mother, and he cited the presence of mouse droppings in her bedding, a dead mouse in her fireplace, and the fact that she could not climb the stairs to the only bathroom in her home.

At the conclusion of the all-day hearing on the brother’s competing requests to be appointed, the judge decided instead to name Karl Bushmaker, an independent professional, as guardian and conservator. Heinz appealed, arguing that his mother’s choice should be given first priority. The Minnesota Court of Appeals agreed, but nonetheless upheld the appointment of a professional.

The priority given to the ward’s preference to serve as guardian and conservator is just a priority, ruled the appellate court, and not a guarantee. When the ward’s best interests require appointment of someone else, the probate court is permitted—and indeed required—to deviate from that priority. Evidence of the living conditions at Ms. Iwen’s home supported appointment of someone else. Matter of Iwen, May 6, 3003.

Arizona law agrees with the Minnesota result. Under the guardianship and conservatorship statutes in Arizona, the probate court is specifically instructed to consider the proposed ward's choice of guardian and conservator, whether made in a document previously signed or by current statement of the ward. The court is, however, permitted to bypass the ward's choice if it determines that doing so would be in the ward's best interest. It is because of the Arizona statute that powers of attorney prepared by Fleming & Curti, PLC, usually include a provision nominating the agent to serve as guardian and/or conservator if it should ever become necessary to involve the court in the process of selecting or supervising a fiduciary.

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