When a person lacks capacity to make decisions for himself or herself the law provides a mechanism for selection and appointment of a surrogate. In Arizona and many other states, a person appointed by a court to handle financial matters for an incapacitated adult is called a conservator, and the person named to make medical, placement and other personal decisions is a guardian. The court may appoint only one or the other, and may appoint the same person to both roles. The court will require annual accountings and status reports, and some major decisions may need to be submitted to the court for approval in advance.

The cost, court oversight and public disclosure in guardianship and conservatorship proceedings may seem overwhelming to both the ward and the guardian/conservator, but the system operates as if every participant might be acting inappropriately in order to minimize improper acts. Many individuals planning for the possibility of their own incapacity might prefer to avoid the involvement of the legal system if possible.

There are often alternatives to guardianship and conservatorship. Durable powers of attorney (usually two separate documents covering financial and health care decisions) can obviate the need for later court proceedings, but at a significant risk. Powers of attorney can literally be licenses to steal, and trusted family members abuse the authority given to them far too often. A power of attorney also requires that the signer be competent at the time, so if incapacity has already set in it will be too late to use this mechanism to avoid court involvement.

Some people might plan for their own incapacity by creating living trusts, establishing a mechanism for orderly transition of financial management, at least, to children or other trusted relatives. Once again, however, the lack of third-party oversight can make such arrangements risky.

The Social Security Administration and most other pension and retirement programs allow for selection of someone to manage payments to an incapacitated retiree. The "representative payee" designation will often be a reasonable substitute for formal court action, and without the cost of lawyers and court monitoring.

Arizona permits family members to make most health care decisions for an incapacitated patient without a health care agent or guardian. Such surrogate decision-makers are prohibited, however, from making a decision to withdraw life-sustaining treatment like artificial food and fluids.

At Fleming & Curti, plc, our first effort when consulted about guardianship and conservatorship is almost always to try to find less-expensive and less-intrusive alternatives. Sometimes, though, the best (or only) choice is court action.

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