Definition Of Conservatorship

Conservatorship refers to the appointment of a guardian or protector over someone who is considered incompetent to do so. Arizona’s laws on conservatorship typically apply when someone is declared incompetent due to mental illness or dementia. This is in contrast to guardianship, which typically refers to supervision of minor children. However, the term guardianship can be used interchangeably with conservatorship regarding adults.

Conservatorship can be temporary or permanent. Conservatorship or guardianship for minors ends when they are considered legal adults, unless they are considered to be special needs.

Role And Capacity Of A Conservator

When someone is said to need a guardian or conservator, the person they may be put in charge of could be called a ward, incapacitated person, person to be protected or person needing protection. The conservator may be called a conservator, a guardian or fiduciary. The last term is especially true if the conservator is only responsible for the person’s finances.

If someone has full conservatorship, they can have control over:

• Access to personal records
• Control over someone’s finances
• Control over where someone lives
• Consent to marry
• Entrance into a contract
• Medical consent
• Personal and social decisions
• Educational decisions

If a guardian is appointed for someone, they usually lose their driver’s license and their ability to obtain one. However, the court can choose to let them retain the driver’s license. If you think they should be allowed to continue driving, you must submit a doctor’s statement saying that this is safe.

Guardians and conservators have legal authority for outpatient psychiatric and psychological care. This includes consent to administer medication and outpatient psychiatric care. Arizona courts can grant a guardian authority to consent to treatment in an inpatient psychiatric facility. That means that court authority is required in many cases for someone to take guardianship and then commit someone to a mental health facility. This authorization is often given only if the person is likely to need care within a year. If the conservator wants this permission, it must specifically be requested in the petition. Furthermore, there must be a special report from the proposed ward’s doctor.

Process To Become A Conservator In Arizona

The state of Arizona requires someone to file a petition to become a conservator. The same form is used whether you want to become the conservator of a teenager or an elderly individual.

The filled-out petition should be filed with the superior court in the Arizona county where the person you want to take responsibility for lives. While the petition is filed with a Probate Division of the Superior Court, the case may be heard by a judge or commissioner.

A request to become a conservator of a minor will result in the parents of a child being notified. If the child is over 14, they must be notified, as well. If the conservatorship petition is regarding a legal adult, then the proposed ward’s physician should be consulted. This is done so to minimize the risk of fraud. There have been cases where someone filed for conservatorship over elderly individuals and had it signed off by a doctor who barely or never met the person, though their primary care doctor would say there was no issue if they’d been consulted.

The supposedly incapacitated adult should be notified of events. Title 14 of the Arizona Revised Statutes mandates this. Furthermore, the statutes state that all others who need to be notified must be. For example, you cannot seek conservatorship of someone with dementia without even informing their spouse or children. The court often appoints an attorney to represent them. Arizona actually has mandatory training for the representation of incapacitated adults.

A Court investigator will be appointed. This person is a neutral employee of the court. They will interview the person who filed the petition. They should interview the supposedly incapacitated adult and any family members involved. They are expected to visit the person’s home. The nominated conservator’s background will be investigated. This includes a criminal background check and determination of whether or not they’ve overseen other conservatorships. You must provide the necessary information on the Probate/Guardian/Conservator Information Sheet that must be submitted along with the conservatorship petition. Conservators with felonies are generally rejected unless they are a close family member of the person.

The court will make a determination based on the evidence presented. This will include testimony of those involved and submitted reports. Those involved can object to the conservatorship itself or the appointment of a nominated conservator. For example, a family member could object to a social worker being appointed as conservator while agreeing that it is necessary. And family members may fight among themselves over who should be the conservator.

Requirements To Become A Conservator in Arizona

Arizona requires a doctor, psychologist and/or registered nurse to say that the adult needs a guardian or conservator to manage their affairs. The obvious exception would be minor children who are assumed to require a guardian until they are at least 18. Arizona even has a separate form for taking guardianship of children at 17.5, since it is clearly considered temporary and the young adult is nearly legally competent.

Arizona requires non-licensed fiduciary to get training in order to be appointed as such. That is mandated by Rule 27.1(A) of the Arizona Rules of Probate Procedure. Furthermore, this is necessary for family members. This training must be completed before someone can be appointed as a permanent guardian of a ward, though you may gain temporary conservatorship to deal with a medical emergency such as what is necessary to admit a schizophrenic to the hospital.

After the person completes training and all required paperwork, there are regular financial reports that must be submitted to the courts.

Prohibitions For Conservators

Conservators are not supposed to use the ward’s funds for their personal benefit, though they may be paid for their services. They are not allowed to co-mingle their assets with that of the protected individual. They are not supposed to engage in self-dealing, such as hiring friends to perform services for the ward in return for a kickback. They are not supposed to violate the standards of care or fail to honor their fiduciary duties.

Avoiding Conservatorship

Conservatorship may be necessary because someone is temporarily or permanently incapacitated. Once you’re declared incapacitated by the courts, it is almost impossible to reverse the decision. That’s especially true if the conservator is against it. After all, you can’t enter a contract to retain an attorney or access funds to pay them if you’re a ward.

You can avoid conservatorship by having both a medical power of attorney document and financial power of attorney document in place. Name first, second and third choice agents that you trust. The medical power of attorney document gives them the permission to admit you to a hospital or consulting with your psychiatrist, but it may prohibit commitment to an inpatient psychiatric institution. A financial power of attorney document can be as limited or as broad as you’d like. For example, it could give someone permission to pay your bills and file your taxes but not make decisions regarding your investments. A financial power of attorney document may give one person legal permission to sell your house to pay for your healthcare while allowing another to pay your medical bills. However, you decide who can do what.

And you have the ability to split decision making. For example, you could name one person as a healthcare agent and another as a financial agent. They should know about the responsibility you want to give them and be able to work with the other person. You can even set up several people to manage your affairs when you cannot, if things are particularly complex. For example, you could ask a bank to manage your investments on your behalf and a family member to manage your personal finances, while a friend with a medical background supervises your medical care.

In some cases, a trust may be appropriate. An irrevocable trust protects assets from lawsuits and creditors. It also removes your control over the money. It is almost impossible to set up an irrevocable trust for your personal benefit, but you can set it up to manage money on behalf of a disabled spouse or child. Then there is no need for anyone to seek conservatorship to manage the assets, since there is already a trustee. You can set up a revocable trust to manage your own finances. This is a viable approach if you have investments, rental real estate or a business to run. The trustee can manage these items on your behalf, whether you want to take a step back or are left incapacitated by an accident.

Arizona has created what is called a Miller Trust. These trusts allow you to put money above the income cutoff for qualifying for Medicaid in the trust. This allows you to pay for long term care with Medicaid. A trustee may be able to set up this type of trust on your behalf, or you can do so yourself. This significantly reduces the work a financial agent needs to do to take care of you.