As our parents age, there may come a time when the children have to make decisions about their long-term care. If they become incapacitated physically or mentally, it can affect not only their judgement or memory, but also their ability to take care of themselves.
The purpose of a guardianship is to take care of an incapacitated person’s health, living conditions and personal care. A conservatorship serves the function of overseeing the estate of an incapacitated person, including paying the individual’s taxes and bills and making financial decisions on their behalf. Both roles are court-appointed and require accountability for all decisions on behalf of the ward, including reports submitted each year detailing all activities.
Either or both roles can serve the function of the care of either an incapacitated minor or an adult, and can become necessary in a number of circumstances. An elderly parent can become incapacitated due to Alzheimer’s or dementia, disease or mental illness. An adult child may have suffered a brain tumor, drug overdose or catastrophic injuries in a car accident.
The legal process in Arizona
The process for establishing a guardianship or conservatorship is dictated by the laws found in Title 14 of the Arizona Revised Statutes, and begins with an extensive application process. A Petition seeking the legal title to take over responsibilities for that person’s care must be filed in the county in which the incapacitated person resides.
The Petitioner can be a family member, spouse or legal professional. The Will of a parent or spouse of an incapacitated person can include directives upon their death to transfer the role of a guardian or conservator to another person. Family members, however, have a right to object to these directives.
The hearing establishes through an investigation the physical and mental condition of the individual, referred to as an “incapacitated person” for a guardianship and as a “protected person” for a conservatorship.
The Petition process for a conservatorship involves a rigorous examination of the Petitioner’s background and intentions and may require that individuals furnish a bond for the aggregate value of the protected property. Because this person will take over legal control of the assets of another individual, this oversight protects the ward from potential fraud or mishandling of the estate.
Because both entities are established by court appointment, it is essential to first seek the advice of an estate planning attorney to determine if the incapacity of the loved one requires both care of the person and care of the individual’s financial affairs.