Who Has Priority to Be Mom’s Guardian or Conservator?

Who Has Priority to Be Mom’s Guardian or Conservator?

Sometimes I get asked this question when a client’s mom or dad has dementia or Alzheimer’s. This blog first discusses when a guardian or conservator is necessary. It then describes who has priority to be Mom’s guardian or conservator. Finally, it recommends ways that you and your family can plan for incapacity in order to avoid the need to go to court if this ever happens.

Key Definitions

First, it is important to understand a few key definitions. In Arizona, a “guardian” is a legal representative appointed by the court to take care of someone who is incapacitated. In general, the guardian has the same powers as a parent has for a minor child. The guardian makes sure that the person has a safe place to live, is fed, and receives proper medical treatment, etc. On the other hand, in Arizona, a “conservator” is appointed by the court to take care of an incapacitated person’s finances. In general, a conservator pays the incapacitated person’s bills, manages their home, and oversees their investments.

However, by far, the most important definition is the definition of an “incapacitated person”. In Arizona, an incapacitated person is a person “who is impaired by reason of mental illness, mental deficiency, mental disorder, physical illness or disability, chronic use of drugs, chronic intoxication or other cause, except minority, to the extent that he lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his person.” Without proper planning, a guardian is generally appointed when an incapacitated person can no longer take care of himself or herself. Without proper planning, a conservator is generally appointed if the incapacitated person is unable to manage his or her financial affairs and there is a concern that the assets may be wasted or dissipated unless proper management is provided.

Who has Priority to Be a Guardian or Conservator?

Under Arizona law, the following persons have priority to be Mom’s guardian if one is needed:

1. A guardian or conservator of the person or a fiduciary appointed or recognized by the appropriate court of any jurisdiction in which the incapacitated person resides.
2. An individual or corporation nominated by the incapacitated person if the person has, in the opinion of the court, sufficient mental capacity to make an intelligent choice.
3. The person nominated to serve in the incapacitated person’s most recent durable power of attorney or health care power of attorney.
4. The spouse of the incapacitated person.
5. An adult child of the incapacitated person.
6. A parent of the incapacitated person, including a person nominated by will or other writing signed by a deceased parent.

There are additional persons set forth in A.R.S. Section 14-5311(B) as well, but the top six are the most common. Of note, there may be more than one adult child or parent who have equal priority to be Mom’s guardian.

Next, under Arizona law, the following persons have priority to be Mom’s conservator is one is needed:

1. A conservator, guardian of property, or other like fiduciary appointed or recognized by the appropriate court of any other jurisdiction in which the protected person resides.
2. An individual or corporation nominated by the protected person if the protected person is at least fourteen years of age and has, in the opinion of the court, sufficient mental capacity or make an intelligent choice.
3. The person nominated to serve as conservator in the protected person’s most recent durable power of attorney.
4. The spouse of the protected person.
5. An adult child of the protected person.
6. A parent of the protected person, or a person nominated by the will of a deceased parent.

There are additional persons set forth in A.R.S. Section 14-5410(A) as well, but the top six are the most common. Similar to the guardian statutes, there may be more than one adult child or parent who have equal priority to be Mom’s conservator.

The Good News – You Can Plan For It!

There is good news! Well drafted estate planning documents may help your family avoid the need for a guardian or conservator. If mom and dad still have capacity, then they can sign documents to completely take care of the situation. As a result, if mom and dad start having trouble taking care of themselves or their finances, then it important to immediately look for their estate planning documents. Moreover, if they are starting to slip, it is important to get the documents signed while they still have capacity to sign them.

What Documents Need To Be in Place?

In order to protect your family from having to go through a court process to establish a guardian or a conservator for your loved one, I recommend having four documents in place:

1. Revocable Living Trust. For larger estates, this document allows a trustee to take over your finances without court intervention if you or your loved one ever become incapacitated.
2. Durable General Power of Attorney (Financial Power of Attorney). This document allows your financial agent to make financial decisions on your behalf for all assets outside of your trust if you or a loved one become incapacitated.
3. Health Care Power of Attorney. This document allows your health care agent to make medical decisions for you if you can’t make them yourself.
4. Mental Health Care Power of Attorney. This document allows your mental health care agent to make mental health care decisions for you if you can’t make them yourself.

These four documents will govern if you ever become incapacitated. With them, your wishes are clearly spelled out and your family members can act on your wishes. Without them, a guardian and/or conservator will most likely be required if you ever become incapacitated, especially for surviving spouses.

A Couple of Other Things to Keep in Mind . . .

With all that said, there are a couple of other things to keep in mind:

1. Don’t try to do these documents yourself. Many clients try to do these documents themselves, thinking that they are no big deal. However, think of what would happen if those documents don’t work. If they don’t work, your family is stuck going to court and spending a lot more in attorney’s fees. The bottom line here is make sure to go with a trusted estate planning attorney to draft the documents for you.

2. If they are already incapacitated, it’s too late. Finally, you should know that, if mom or dad is already incapacitated, then it’s too late for them to sign new documents. Sometimes, people call me to ask me if these documents can be drafted after someone is already incapacitated. The short answer is – “It’s too late then.” As a result, make sure that you parents’ documents are reviewed and/or updated on a regular basis to ensure that their documents are up to date when you need them.

Need help? Please call me today – 602.663.9263

Our firm has helped hundreds of families just like yours handle a wide variety of estate planning, business planning, probate, trust, and elder law issues. When families or business owners are not getting along, we can also handle any disputes and litigation related to their businesses, wills, trusts, guardianships, or conservatorships. Please give me a call, so that I can help you work through these difficult issues with confidence.