A guardian is a person who is appointed by the court to make health care decisions and lifestyle decisions for another person, known by law as an "incapacitated person" or generically as "the ward".
A conservator is a person who is appointed by the court to preserve the finances and make financial decisions for another person, known by law as a "protected person" or generically as "the ward".
A third category of responsibility over another person exists under Arizona law. If the guardian needs to have the authority to place the incapacitated person in a "level one behavioral health facility" (which means a psychiatric hospital or a psychiatric ward in a regular hospital) the court must add that power to the order appointing the guardian.
In a non-emergency Guardianship proceeds as follows:
In a non-emergency situation the procedure for obtaining guardianship, guardianship with mental health powers and conservatorship is as follows:
- 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
The process described above takes 30 days, or so, in an uncontested case, and may take 90 days or more in a contested case.
There are situations where the need for guardianship or for conservatorship is immediate. Here are some examples:
Alzheimer's patient who has been living at home has suddenly become violent, and recently struck spouse. It is necessary to admit the patient, against his will, for care and treatment in a geriatric psych unit in a hospital. The unit will require a guardianship before the patient can be admitted, or the unit may advise the family that it will admit the elder provisionally if it can be assured that the family is pursuing emergency guardianship.
Frail elderly woman has been living at home. She is unable to adhere to a medication schedule herself, leaves the oven burners on, and wanders if she is not supervised. She has repeatedly fired the caregivers that family has hired to come into the home, supervise her and administer medications. She either needs immediate placement in a nursing facility or the immediate appointment of a guardian to hire companion caregivers who won't walk off the job when the elder fires them.
Frail elderly woman has been living at home, and live-in caregiver has been accessing her bank accounts and funneling large amounts of the elder's money to a boyfriend with a gambling problem. Immediate action is necessary to cut of the flow of funds.
Emergency Hearing Happens in 1-3 Days
In the above described situations, and in other situations where an emergency exists, it is possible to get the case before a superior court judge within 24-48 hours. The judge will hear the evidence and decide whether there are adequate grounds to grant a temporary guardianship or conservatorship. Temporary guardianship or conservatorship typically lasts for 30 days, but may be extended by order of the court.
Prior to adoption of new probate rules by the Arizona Supreme Court effective January 1, 2009 an emergency guardianship or conservatorship could only be filed in a case where you had requested permanent guardianship or conservatorship as well. Under the new rules it is no longer required that you request a permanent guardianship or conservatorship.
An emergency guardianship may include mental health placement powers.
The process of requesting an emergency hearing is quite intricate, and probably requires an attorney.