Helping Those Who Can’t Help Themselves

Each month, I receive several calls from clients whose parents or loved ones are incapacitated and need assistance.  These clients want to help, but are not sure what to do.  Sometimes the family member has previously signed powers of attorney or other estate planning documents to address this situation, but sometimes they have not.

What can they do?

In general, if the incapacitated person has these documents in place, then the health care power of attorney, the mental health care power of attorney, and the living will appoint an agent to handle the person’s health care needs and address personal care decisions and end of life issues.  In addition, if they have signed a durable general power of attorney, it will appoint an agent to pay their bills and manage their finances.  Moreover, if they have created a trust and funded it properly, then the trustee can handle the same financial functions.  However, if the parent or loved one does not have these documents in place, then they will most likely need a guardian to be appointed for their care and a conservator to be appointed to take care of their finances.

In Arizona, a guardian and conservator is appointed by the court.

Although different states may use different terminology in this situation, in Arizona, a guardianship is the appointment by the court of an individual to provide care and make personal decisions for an incapacitated adult.  In Arizona, a conservatorship is a court proceeding to appoint an individual to manage the financial affairs of an incapacitated adult who is unable to manage his or her own property or financial affairs.  In order to have someone appointed as a guardian or conservator of your loved one, it is necessary to file a petition with the court, which requires a medical report, a court investigator’s report, and other significant court costs, in addition to attorney’s fees.  Moreover, if a guardianship and/or conservatorship proceeding is initiated, the courts are involved in the situation, and once they are the courts are involved, they tend to stay involved.  I will discuss the details of the appointment process and the powers of a guardian and conservator in a separate blog.

How can a guardianship or conservatorship be avoided in this situation?

Generally speaking, with proper planning ahead of time, a guardianship and conservatorship proceeding (and the significant costs related to such proceeding) can be avoided.  Most of the time, if the person has executed a valid health care power of attorney, mental health care power of attorney, and living will (for end of life decisions), a guardianship can be avoided.  In addition, most of the time, a validly-executed durable general power of attorney and/or a properly funded trust will enable the named agent or trustee to manage the assets and financial affairs of the incapacitated person without the need for a conservatorship.  However, if the person is already incapacitated, then it is too late to execute these documents, because they have to have a certain level of capacity to be able to sign them.

Call me today – 602.277.7000

Our firm has helped hundreds of families just like yours handle a wide variety of estate planning, probate, and guardianship/conservatorship issues.  In particular, we have the experience in handling all different kinds of estate planning, probate, trust administration, guardianship, and conservatorship matters.  When families are not getting along, we can also help you to handle any disputes and litigation related to these types of matters as well.  Please give me a call, so that I can help you work through these difficult issues with confidence.