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.
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.
Under Arizona law, the following persons have priority to be Mom’s guardian if one is needed:
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:
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.
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.
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:
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.
With all that said, there are a couple of other things to keep in mind:
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.