Guardians and Conservators/The Basics, in 663 Words

February 23, 2014

In Arizona guardians look after the person, while conservators take care of their assets. (Labels vary from state to state.) Guardians may be appointed for minors or incapacitated adults. Minors need guardians when their parents have died, or when parental rights have been severed. Incapacitated adults need guardians when they lack capacity, often because of Alzheimer’s or another form of dementia.

Courts appoint conservators for minors, who cannot have money (allowance and a savings account do not count) and for adults who need help with their financial affairs. For children, the most common events that trigger the appointment of a conservator are the receipt of money from an accident settlement and the death of a parent whose will has no provisions for a trust. For adults, many cases involve both a guardian and a conservator. For the appointment of a conservator the adult must be in need of protection, which is a lesser standard than lacking capacity (the guardian standard).

Guardian/conservator appointments involve the court. Because having a guardian or conservator affects the rights of the protected person, the court appoints an attorney for the protected person, and also appoints an investigator and physician to report to the court.

The process involves a court hearing. The judge will have reviewed the reports from the investigator and the physician, and will hear basic testimony to establish that the court has jurisdiction over the ward—the person who will be getting a guardian/conservator—and the person’s property, if a conservator is being appointed. (These hearings often take about 15 minutes.) If there is a dispute about the need for a guardian or conservator, or who should be appointed, the process will take longer and look like a trial. (My last guardianship trial lasted a full two days.)

The same person may serve as guardian and conservator, or not. The court can appoint a family member or friend, if he or she will not be paid for services being provided. If the case involves a minor and a guardianship, the court will generally follow any instructions in the will, so long as the suggested guardian can and will fulfill the duties. (If you identify someone in your will as your child’s guardian, have a conversation about the issue before you die; no one should find out after you die that you thought they’d make a great substitute mom or dad!)

Conservators are bonded. Thus, before the appointment becomes effective a conservator must obtain a surety bond from an insurance company in an amount that equals the value of the protected person’s assets and one year’s income. Real estate may be excluded from the asset total, if the court also issues an order restricting any real estate sales without court permission. (Often, a family will go to a Licensed Fiduciary—more below—because a bond will not likely be available if the proposed conservator has a limited net worth.)

In Arizona only a Licensed Fiduciary can serve as a guardian or conservator and charge for the services being provided. Licensed Fiduciaries have passed an exam and complete 20 hours of continuing education every two years. They may or may not be attorneys—most are not—and are regulated by the Fiduciary Board, an 11-member body that exists, primarily, to review improper conduct allegations. I’m both a Licensed Fiduciary and a member of the Fiduciary Board—the Board includes some lay members—and my law practice involves many guardian/conservator cases.

Guardians and conservators report to the court annually. Interested parties—the protected person, immediate family, and counsel—receive the annual reports and have a right to be heard.

Guardian/conservator cases involving adults are on the upswing, as we age and live longer. Not every case requires a Licensed Fiduciary, and different professionals are better suited to certain cases. That all said, the appointment process involves lots of details, and cases in which people are in “do it yourself mode” often don’t go well. So, if you have a family situation in which you may need a guardian or conservator, get help.

Law

2 Responses to Guardians and Conservators/The Basics, in 663 Words

  • When an individual receives SSI and is unable to handle finances a payee representative needs to be on the individuals account(s) and represent the them when it come to the Social Security manner. Would they be considered a conservator even though not court appointed?

    • Not in Arizona, at least. A Rep Payee owes fiduciary duties to the person for whom her or she serves, but is not subject to the procedural requirements associated with serving as a conservator, and has no authority beyond that which Social Security assigns to him or her as a Rep Payee.

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