When a life change leaves an individual incapacitated or unable to manage their money and assets, a guardianship or conservatorship may be the best way to keep the individual safe and financially sound. Guardianship and conservatorship require approval by a court. We have a lot of experience handling these matters in court and have had great success at getting our clients appointed guardian or conservator for their loved ones. Click on the pages below for more information about guardianship and conservatorship.
When an individual no longer has the capacity to protect themselves or to make reasonable decisions about their personal matters, they may benefit by having a guardian appointed to protect them. Guardianship may be appropriate for an adult when he or she has declined physically to the point that they are unable to care for themselves safely, when they are vulnerable to injury or abuse, or when they unreasonably resist efforts to keep them safe.
For guardianship, the law requires that a doctor, psychologist or registered nurse state in writing that the individual is incapacitated.
When the Court appoints a guardian, then the individual becomes the ward of the guardian. The law states that the guardian has the same responsibilities for the ward that a parent has for their child. From that point forward, the guardian is responsible for making the reasonable decisions that keep the ward safe.
The guardian reports to the Court at least annually to keep the Court informed of the ward’s status and of the guardian’s efforts for the ward.
Conservatorship Phoenix Arizona
A conservator manages and protects an individual’s finances when the individual is no longer able to do so. This can occur for many reasons, such as brain injury, mental disorder, dementia, drug or alcohol abuse or addiction, or other reasons. Without a conservator the potential ward may become financially irresponsible. He or she may stop paying bills, may be victimized by telemarketing, may be exploited financially by someone close to them, or may spend or give away significant amounts of money or assets without a good reason to do so.
The conservator protects the individual’s money and property by preventing the individual from being victimized by fraud, exploitation, or by the individual’s inability to make reasonable financial decisions. Just as importantly, the conservator manages the day to day financial needs of the person.
The conservator handles the individual’s bank accounts, investments, retirement checks and pension payments, bill paying, health care insurance premiums and co-pays, and any other financial needs that arise.
The conservator reports to the court at least annually about the person’s financial affairs. Each year the conservator must provide the Court with an accounting of the income and expenses of the person for the year prior to the accounting.
Court Appointment of a Guardian or Conservator
We advise our clients about the entire process for obtaining a guardianship or conservatorship for the individual. Here is a brief summary of what our clients can expect to discuss at a consultation.
Guardians and conservators must be appointed by a superior Court Probate Commissioner or Judge. Our firm regularly goes to all of the probate courts throughout Maricopa County on guardianship and conservatorship matters. And we frequently appear in probate matters in other the counties throughout Arizona.
The person who wants a guardian or conservator appointed is called the Petitioner. The Petitioner files a legal document called the Petition with the Court. The Petition must provide the Court with pertinent information before the Court may appoint a guardian or conservator.
The information in the Petition must include a statement by a doctor, psychologist or nurse that the individual in incapacitated.
We prepare and file the Petition for theAppointment of a Guardian or Conservator, and all of the related court documents before the court hearing is scheduled.
When the Court receives a Petition it schedules a hearing on the petition.
The law states that the Petitioner must give written notice of the Petition, the place of the hearing, and the time of the hearing to all persons who have an interest in whether the individual needs a guardian or conservator, and if so then who is the best person to serve as guardian or conservator. Interested persons include the individual, the individual’s spouse, parents, adult children, and brothers and sisters.
Any interested person has the right to come to the hearing and to testify at the hearing if he or she wishes to speak to the court. The potential ward is also appointed an attorney to speak oh behalf of the potential ward.
In addition to the information stated in the Petition, the Petitioner presents more information to the Court at the hearing about what kind of incapacity the individual has, and about who the best person is to serve as the individual’s guardian or conservator. That information includes testimony under oath from the person who wants to become guardian or conservator. In addition to that testimony, the Court frequently asks questions to the person who wants to become guardian or conservator.
If there is no objection or opposition to the Petition, then at the hearing the Court considers all of the evidence and information and decides whether the individual needs a guardian or conservator. If the Court finds that the individual does need a guardian or conservator, then the Court decides who it will appoint as the guardian or conservator.
Emergency Petitions for Appointment of a Guardian or Conservator
When an individual is in immediate danger of physical harm, or of financial crisis, the individual’s family or a close friend of the individual may file an Emergency Petition to tell the court that an emergency exists and the individual needs immediate protection from physical harm or financial crisis, and to ask the court to appoint a temporary guardian or conservator. The court may appoint a temporary guardian or conservator for a limited period of time.
The family member or close friend who filed the Emergency Petition often wants to then have a guardian or conservator appointed permanently. If so, then before that limited time period for the temporary appointment expires, the Petitioner must return to court and present the Court with the information and evidence that the Court needs before it can order that a guardian or conservator is appointed.
Guardianship with Mental Health Powers
Some incapacitated individuals have mental health or behavioral health issues in addition to the individual’s incapacity from dementia, brain injury, substance abuse or other causes of incapacity. When the individual with mental health or behavioral disorders requires psychological and psychiatric care outside of a specific level of inpatient behavioral health treatment facility then the guardianship powers include obtaining that treatment for the ward. If the individuals mental health treatment needs are greater, then the guardian can ask the court to order that the guardian has the power to admit the individual for inpatient mental health care and treatment. When the individual needs that care and treatment, we go to court with the guardian to ask the court to add mental health treatment decision authority to the guardianship. Guardianships with mental health powers require many more and different steps than standard guardianship, and we represent our guardian clients to handle all of those steps for the client so the guardian client may best protect the ward.
Contested Guardianship or Conservatorship Petitions
Any interested persons has the right to tell the Court that he or she opposes the appointment of the Petitioner as Guardian and Conservator, and to come to Court to state the reason for opposing the Petition. When an interested person objects to a Petition for the appointment of a guardian or conservator, then the Petition is considered contested. A contested Petition goes into a longer process that involves additional time, work and cost to determine whether the court will appoint a guardian or conservator.
When an interested person objects to the Court about a Petition to appoint a guardian or conservator, the Court must schedule a special hearing to determine whether a guardian or conservator (or both) should be appointed. The special hearing is called an evidentiary hearing.
Although there is typically no jury in the evidentiary hearing to appoint a guardian or conservator, the evidentiary hearing is very much like a trial. The attorneys for the person who wants a guardian appointed makes an opening statement, and so do the attorney for the individual and the attorney for the person who opposes the Petition.
In the evidentiary hearing, the attorneys examine or cross-examine witnesses, present documents and other materials to the Court as evidence, and make closing arguments. Since there is typically no jury, the Probate Court Commissioner or Judge makes the final decision whether or not to appoint a guardian or conservator.
To download information on Guardianships and Conservatorships, click on the link below.