Guardian is a person appoointed by the court to make medical decisions and lifestyle decisions.
Conservator is a person appointed by the court to conserve another persons assets.
Ward is a person who is served by a Guardian or a Conservator.
Incapacitated Person is a person who cannot make or communicate responsible decisions about his health or lifestyle due to physical or mental disease or defect.
Protected Person is a person who cannot make or communicate responsible decisions about his finances due to physical or mental disease or defect.
Agent is a person appointed under a Power of Attorney to attend to the affairs of another person.
Does every person who fits the legal definition of an incapacitated person need a Guardian?
If the person has made a Medical Decisions Power of Attorney, he has appointed an Agent to make or communicate medical decisions for him, health care providers may look to that agent for direction.
If the person cannot make or communicate responsible decisions concerning his medical care, Guardianship may be avoided by looking at the Surrogate Decision Makers Statute, A.R.S. Section 36-3231. The statute may tell you to whom Health Care Providers may look for health care decisions.
Sometimes, health care providers refuse to look to an Agent or a Surrogate Decision Maker for decisions. Typical example is a wandering Alzheimer's patient who clearly needs nursing home admission but who is recalcitrant. Nursing home will be reluctant to rely upon the Surrogate Decision Maker's Statute as authority to hold the Alzheimer's patient, and may require a court ordered Guardianship. No law compels any person or business to honor a power of attorney.
If you are convinced that the person who is appointed Agent or who has priority as a Surrogate Decision Maker does not have the ward’s interest at heart, you may need to apply for guardianship in order to supplant him.
What are the powers and duties of a guardian?
If the guardian has custody of the ward, the guardian is responsible for the care, comfort and maintenance of the ward. The responsibility also includes training and education. A guardian is required to start conservatorship proceedings if property of the ward is In need of protection.
A guardian is required to report at least annually to the court upon the condition of the ward.
A guardian is required to find the least restrictive setting for his ward, consistent with the wards needs, capabilities and financial ability, and consistent with the threat, if any, that the ward poses to public safety.
A guardian is required to secure appropriate medical, psychiatric and psychological care and social services. Previously, psychiatric care was the exclusive realm of the Title 36 guardian. Title 36 guardianship has been abolished. The law is now clear that a Title 14 Guardian may consent to the following treatments or placements:
- Placement in a locked Alzheimer’s Unit
- Electro-convulsive (shock) therapy
- Anti-psychotic medications
For Involuntary mental health treatment and hospitalization in what is known as Level One Behavioral Health facility (typically a psychiatric hospital or a psychiatric ward in a general hospital), special additional petitions will be required within the Title 14 guardianship framework.
Is the guardian or conservator personally financially responsible for the ward?
A guardian is not vicariously liable for the acts of his ward. But a guardian is personally exposed if he is negligent in his supervision of the ward, if the ward injures himself or a third person.
A conservator does NOT become financially responsible for his ward by virtue of becoming conservator.
Can a guardian or a conservator delegate his responsibilities?
A guardian or a conservator can employ professionals to help discharge his responsibilities, but the duty itself cannot be delegated to another person. In our mobile society, guardians frequently do not live in the same towns as their wards. It is appropriate to hire case managers, tax preparers, accountants, and bill payers, provided that the guardian oversees them.
Can a guardian seek a divorce on behalf of his ward?
Arizona case law permits it. And it is a useful tool in protecting a defenseless ward from an abusive spouse. But, if the purpose of divorce is to conserve the family finances from dissipation in a nursing home situation, be advised that in all of the cases I have handled since 1981, there have only been two cases where divorce offered a financial advantage beyond the sophisticated ALTOS planning that we are able to do.
Describe the process of appointing a Guardian or a Conservator.
- Petition for appointment of Guardian or Conservator or both
- Petition for Appointment of Attorney, Medical Examiner and Investigator
- Notify Attorney, Medical Examiner and Investigator that they have been appointed.
- Notify relatives of the pendency of the action.
- Schedule the hearing on Guardianship or Conservatorship
- Obtain physicians report in Guardianship case and distribute it.
- Apply for appropriate bond in a conservatorship case.
- If the case is not contested, prepare an order for the Judge to sign and present evidence at the non-contested evidentiary hearing.
- Once the order is signed, file your bond and get the Clerk of the Court to issue "Letters"
- File a conservatorship inventory
How do you get one appointed "Yesterday"?
There is a process for appointing a Guardian or Conservator in the case of a real emergency. It can take place within 24 to 48 hours. The emergency must generally constitute a clear and present threat to the Ward's health or an immediate threat that his finances will be wasted or dissipated unless a Guardian or Conservator is appointed.
How does a guardianship or conservatorship end?
The death of the ward automatically terminates the guardianship or conservatorship. The conservator's authority to act as conservator can be converted into an authority to act as Personal Representative of the ward's estate if proper application is filed with the court.
The ward or any other interested person may apply to terminate the guardianship or to replace the guardian or conservator.
When a conservatorship ends, the court requires the conservator to file an accounting. This requirement can be waived by the heirs or devisees. If the conservatorship was for a minor, the conservator must account to the minor when she turns age 18 and release all conservatorship property to her.
When a conservatorship ends, the court should release the bonding company from its promise to make the estate whole for any losses caused by misconduct of the conservator.