FAQ- Guardianship and Conservatorship
Outlined below are answers to some frequently asked questions regarding guardianship and conservatorship proceedings. If you have additional questions, please call to speak with one of our attorneys. We will provide you with a free telephonic consultation to assist you with your matter. Please note that the free consultation does not apply to providing assistance with self service documents.
Q: Why would an adult need a Guardian?
A: In regard to an adult, a guardianship is necessary if the individual is over the age of 18, but is mentally or physically incapacitated. In this circumstance, a court will appoint a competent adult, called a guardian, to make decisions for the incapacitated adult (also called “Ward”). These decisions include those relating to living arrangements, medical treatment and other personal care decisions. Often, guardianships are needed in situations where an elderly individual suffers from Alzheimer's disease or other mental disability. These procedures can also be necessary for handicapped children who reach the age of majority (18 years) but cannot make their own decisions. Another example is an individual that has been severely injured (such as in a coma) and someone needs to have authority to make decisions concerning that person.
Q: When does a minor need a Guardianship?
A: Guardians are appointed over minors (under 18 years old) when the minor’s parents are no longer willing or able to take care of the minor. For example, if parents abuse their children, become too ill or die, a guardian can be appointed. Sometimes parents voluntarily turn over guardianship if they feel it is in their child’s best interest.
Q: Why would an adult need a Conservator?
A: A conservator is someone who is appointed by the Court to oversee the finances of the incapacitated adult. This person or entity is responsible to pay the bills for the ward and manage the ward’s property. The Conservator also determines how the ward’s monies are spent. The Conservator must provide an accounting to the Court every year so that the Court is aware of how funds are being spent.
Q: When does a minor need a Conservatorship?
A: A minor needs a conservatorship when the minor becomes entitled to funds and is still under the age of 18. This is common in car accident cases where a settlement is paid on behalf of the minor. In Arizona, a Conservator is required to place the minor’s funds in a restricted account. This means that no one can withdraw any of the minor’s funds without a Court order. When the minor turns 18, the Conservator must ask the Court to terminate the conservatorship and the funds are provided to the ward.
Q: Who can be a Guardian or Conservator?
A guardian can be a relative, spouse, friend, friend, lawyer or anyone else the Court feels is appropriate to care for the adult or minor. A guardian can also be an organization or state-run agency. There are also professional guardians, who are paid out of the incapacitated adult’s funds, though the court must approve the arrangement.
Q: Why does someone need a Guardian and/or Conservator when they have a power of attorney?
A: Powers of attorney are beneficial documents to have and can often be used in lieu of a guardianship and/or conservatorship. For example, a durable financial power of attorney selects a person to manage finances. A durable power of attorney for health care names a person to make medical decisions. A living trust can also give control to someone to deal with the finances. Generally, powers of attorney and/or a living trust are considered better alternatives to appointing a guardian because they are much less costly and do not require the Court’s involvement.
Although a power of attorney allows someone to act on behalf of an incapacitated adult, it does not stop the incapacitated adult from dealing with his or her own affairs. In certain circumstances, the appointment of a Guardian and/or Conservator order is needed so that the incapacitated adult no longer has legal authority to deal with their own finances or care decisions. For example, this can occur when an elderly person starts giving their money away to anyone that asks. This can also occur when a person checks themselves out of a medical facility where they need to remain for their best interests.
Q: My mother needs a Guardian, but I can’t afford it. What can I do?
A: Generally, a guardian does not need to use his or her own money to take care of the ward. This is one of the most common misconceptions. The Conservator is responsible for paying the ward’s bills. However, such bills are to be paid from the ward’s funds. Unfortunately, if the ward doesn't have any assets or income, then family members often end up paying for the ward’s expenses.
Q: How long does it take for the Court to establish a Guardianship or Conservatorship?
A: In Arizona, permanent guardianship and/or conservatorship can be granted in 4 to 5 weeks if all goes well and no one contests it. If an emergency exists, Arizona laws allow a temporary Guardian and or Conservator to be appointed. Such appointments can be made in as little as 2 days.
Q: Am I required to have an attorney?
A: No. Not everyone hires an attorney, but it's usually the safest and smartest thing to do. Guardianship/conservatorship law is complex. The person who wants to become a Guardian or Conservator must file a petition asking the Court to determine incapacity and appoint a Guardian and/or Conservator.
Q: How much does it cost to be appointed as a Guardian or Conservator for an adult?
A: Unfortunately, it is rather expensive to become the Guardian or Conservator of an adult. Costs alone are about $1000.00, which includes the court filing fee, court investigator’s fee, service of process and physician’s fees. Attorney’s fees can vary depending on the circumstances. However, you should budget $4000.00 to $5000.00 for attorney’s fees. Keep in mind that the ward’s funds can be used to reimburse you for the attorney’s fees paid so long as the Court believes that the appointment of a Guardian and/or Conservator is necessary.
In the event that you are unable to pay an attorney, you may wish to use the Court’s self service center if you are in Maricopa County. The self service center contains some of the guardianship/conservatorship forms. Please click the link below to be taken to the self service center for Maricopa County. Keep in mind that we can also assist you with the self service documents on an hourly basis. http://www.superiorcourt.maricopa.gov/SuperiorCourt/Self-ServiceCenter/.
Q: How much does it cost to be appointed as a Guardian or Conservator for an minor?
A: For a guardian or conservator of a minor, the attorney’s fees and costs are much less. Costs are approximately $300.00 and you should budget $2500.00 to $3500.00 for attorney’s fees. The Court will allow the attorney’s fees and costs to be paid from the minor’s funds.
