Guardianship and Conservatorship
[Note: This material was prepared by an Arizona attorney relying primarily on Arizona law. While much of the material will also apply to other states’ laws, you should consult a lawyer in your locality for more specific information.]
Under Arizona law, a guardian and/or conservator can be appointed for a person who suffers from mental illness, mental disorder, physical illness or disability, chronic use of drugs, chronic intoxication or (in the case of conservatorship) confinement, disappearance or detention by a foreign power. In addition, the court must specifically find that the ward is unable to make or communicate responsible decisions and is therefore unable to provide food clothing and shelter without assistance, before appointing a guardian. Appointment of a conservator can only be made when the court finds that there are assets that will be wasted or dissipated without proper management, or that provision must be made for the care of the ward or his dependents.
A. Powers of Guardian
A guardian is responsible for most of the life decisions that must be made for his ward, including authorization or withholding of medical care, living arrangements and the like. The relationship is analogous to that between a parent and his minor child. The guardian is limited in some of his powers, however. For instance, the guardian may not admit his ward to a mental health treatment agency involuntarily (except after a special court proceeding) or write a will for his ward.
A guardian is not expected to handle income or property of his ward. The law recognizes, however, that some payments may be made to a guardian for the benefit of his ward. In practice, Social Security, SSI or other recurring payments are frequently handled by guardians, who can then be required to report to the Court just as a conservator would.
The guiding principle governing the actions of a guardian must always be the best interests of his ward. The interests of the guardian himself, society at large or the convenience of administration must in every case be subordinated to the ward’s best interests. Perhaps the only exception to this principle widely recognized by the courts exists in the “right-to-die” cases, in which great weight is accorded to any opinions expressed by the ward prior to his incapacity.
A guardian’s powers may be limited by the Court. As an example, the court might authorize the guardian only to make medical decisions. Any limitations on the powers of a guardian will be clearly displayed on his Letters of Appointment (the court document which actually gives him the authority to act).
B. Powers of Conservator
A conservator is appointed to handle the financial affairs of a person deemed to be in need of protection. A conservator’s power is limited to financial matters and does not include the power to control his ward’s living arrangements or medical care, though the practical effect of a conservator’s choice of rental arrangement or medical provider may be control of those decisions for his ward.
By accepting appointment and recording his Letters of Appointment with the County Recorder, the conservator holds title to his ward’s property in trust for the ward. The fiduciary responsibility thus created is of the highest order, and the conservator must fully account annually to the Court and remains liable for the acts he undertakes on behalf of the estate until the Court has approved those acts. To assure his faithful performance of his fiduciary responsibilities, a conservator must post a bond; the amount of the bond should be approximately the value of the ward’s property plus one year’s anticipated income. It is also possible to have a conservator appointed for a single transaction or a limited purpose. The limitations of such a conservator will be clearly displayed on his Letters.
C. The Appointment Process
Every petition for guardianship or conservatorship must be filed with the Court and served upon the proposed ward. Notice is given to other persons (including spouses, adult children and preexisting guardians and conservators of the ward). The proposed ward must always be represented by counsel, either of his own choice or appointed by the Court. A visitor and physician must be appointed and report to the Court. The hearing itself must be public and the proposed ward permitted to attend and be heard. Finally, the proposed ward is entitled to have a jury decide the matter, rather than a judge, if he so desires.
While the cost of legal proceedings varies tremendously depending on the existence of contested issues, the speed with which participants and witnesses file required reports and a myriad of other variables, the total cost of a typical guardianship or conservatorship proceeding should be expected to be in the range of $3,000 to $5,000. This figure includes attorney’s fees (for both the petitioner and the ward), court costs, bond premiums and fees for appointed witnesses.
CAUTION: The actual cost of any given proceeding may vary widely from these figures. Remember also that the cost of the proceedings may be recovered from the ward’s estate if there are sufficient assets; if there are insufficient assets, some of the costs may be charged directly to the Court.
If it can be shown that an emergency exists, a guardian or conservator can be appointed quickly, with short notice to the involved parties or, if the Court is satisfied that it is necessary for the best interests of the ward, with no notice at all. The emergency appointment must be limited to a relatively short time, and must be followed by notice to the ward and an opportunity to be heard after the appointment. The emergency appointment must also be followed by a regular application for appointment of a guardian or conservator.
F. Mental Health Concerns
When a ward requires inpatient psychiatric treatment, some of the rules are different. A guardian only has the authority to commit his ward to a “Level One” mental health treatment facility (a term that generally includes locked psychiatric units and similar institutions) if special court proceedings have been undertaken. There are two separate paths to accomplish this result—either the civil commitment process or gaining authority in the guardianship itself. Either process will require a mental evaluation by two physicians (usually both must be psychiatrists), appointment of an attorney to represent the ward and a separate hearing process. If mental health treatment authority is sought in the initial guardianship petition the special procedures can usually be completed at the same time as the basic guardianship process.
G. Power of Attorney
Given the cost and court involvement necessarily associated with guardianship and conservatorship, many people who might otherwise seek appointment are inclined to consider other available alternatives. The most commonly suggested alternative is the power of attorney, either general or specific, regular or durable. A durable power of attorney may provide all the required ability to manage another persons affairs, provided the power was freely given by a competent individual (at the time of its signing). Similarly, a health care power of attorney can give another person the power to make medical decisions for the principal, but also must be signed by a competent individual. The power of attorney neatly avoids the need for court involvement; unfortunately, it also avoids the protection of court scrutiny of transactions and decisions and the financial protection of a bond securing the attorney-in-fact’s performance.
It is also possible for a competent individual to give another person authority to consent to future psychiatric treatment. A “mental health” power of attorney can even be made irrevocable, so that the signer does not have the power to revoke the document at the very time it is most needed.
H. “Living Wills”
In many instances, the necessity for the appointment of a guardian and conservator arises during the last illness of the ward. It often happens that the principal issue involves the decision to withhold treatment that would merely prolong the life of the patient, without providing a cure or improvement in his condition. It is for just such cases that the Arizona statutes permit competent individuals to make an advance declaration of their wishes with regard to such care, and to name another person as the one to make medical decisions and sign consent forms for them. Forms are commonly available for both Living Wills and Health Care Powers of Attorney.
Guardianship and conservatorship proceedings can be both complicated and expensive legal actions that substantially infringe on the freedom and self-control of an incapacitated person. Of course, they should not be undertaken without serious thought to the consequences and consultation with a competent attorney. In particular facts, however, the appointment of a guardian and/or conservator may act to assure the provision of appropriate medical care or financial protection. In those cases, a concerned family member or friend should not hesitate to seek appointment as guardian or conservator.