What Is the Difference Between a Guardianship and a Conservatorship in Arizona?

When people cannot care for themselves or manage their affairs, their loved ones may petition the court for guardianship or conservatorship. Both these arrangements allow court-appointed individuals to protect vulnerable adults or children. In Arizona, a court may establish guardianship by appointing a guardian to look after someone’s well-being. However, a conservatorship allows a conservator to manage someone’s financial affairs.

Vulnerable people may require guardianship or conservatorship when they do not have a previously executed power of attorney or health care proxy. As a result, families typically seek guardianship or conservatorship in emergencies when a loved one unexpectedly becomes incapacitated. Understanding the difference between guardianship and conservatorship can help families determine the proper structure to protect a loved one’s interests, finances, and well-being.

What Are the Main Duties and Responsibilities of a Guardian in Arizona?

An Arizona court may create a limited guardianship over someone who cannot make their own decisions (called a ward). This type of guardianship gives a guardian authority over specific aspects of a ward’s life as designated by the court, such as medical decisions or finances. Courts may create limited guardianships when they find that the ward has the capacity to make various decisions in their life, including with the assistance of trusted family members or advisors.

Alternatively, a court may establish a general guardianship, giving a guardian comprehensive legal authority over a person’s personal and financial affairs. Courts use general guardianship for individuals who cannot make personal decisions independently or with others’ assistance.

Depending on the scope of a guardianship, a guardian will have various duties and authority, such as helping with the ward’s:

• Personal care, including managing the person’s daily life, such as health care, social activities, and education
• Living arrangements, including deciding where the ward will live, such as in their home, with a relative, or an assisted living or skilled care facility
• Medical care, including determining what treatment the ward will receive
• Financial situation, including managing the ward’s finances (when there is no conservator appointed)

Guardians in Arizona remain accountable to the court that appointed them for the actions they take on behalf of the subject of guardianship. In most cases, guardians must submit regular reports to the court, the ward’s family, and their attorney. The reports should detail the conditions of the ward’s life, actions the guardian took on their behalf, the care they received, and an accounting of their finances (if applicable).

Guardians also owe a fiduciary duty to the ward. This duty involves acting in the ward’s best interests and avoiding self-dealing or conflicts of interest, including taking actions that benefit the guardian but harm the ward.

What Are the Main Duties and Responsibilities of a Conservator in Arizona?

Conservatorship focuses on managing a person’s financial and legal affairs when they cannot do so themselves. Some of the primary responsibilities of an Arizona conservator include:

• Asset management – Conservators must manage the ward’s assets reasonably and prudently. This includes keeping assets in appropriate accounts, taking necessary legal actions to manage the ward’s property, or making reasonable investments tailored to the ward’s needs.
• Financial decisions – Conservators must handle the payment of the ward’s debts and expenses and decide whether to acquire or sell property, such as homes or vehicles.
• Recordkeeping – A conservator must keep detailed records of the ward’s financial transactions, including income, receipts, disbursements, expenses, and investments. Recordkeeping duties include taking an initial inventory of the ward’s estate at the start of conservatorship, including a fair market value for all estate assets.

Conservators must file regular financial reports with the court to account for the ward’s:

• Income
• Expenses
• Acquisition, sale, and change in value of assets

They must also describe the financial decisions the conservator has made on the ward’s behalf.

Before appointment, a conservator must submit to fingerprinting and a background check by the court. In many cases, the court will require a conservator to post a bond equal to the value of the ward’s estate, which serves as a financial security against the mismanagement of the ward’s assets.

Conservators also have a fiduciary duty to act in a ward’s best interests and to avoid self-dealing or conflicts of interest. Should a protected person suffer a financial loss due to their conservator’s negligence or misconduct, they may obtain compensation from the conservator’s bond.

Why Would Someone Be Put in a Guardianship or Conservatorship?

The circumstances under which a court may appoint an individual or legal entity to serve as a guardian or conservator for a vulnerable person differ between the two roles.

Guardianship Circumstances

A court may appoint a guardian for a minor child who does not have a biological or legal parent capable or willing to provide care and custody. Courts can also appoint guardians for incapacitated adults who cannot make or communicate decisions regarding their personal, medical, financial, or legal affairs due to physical disabilities or cognitive impairments.

A court must consider whether a person retains legal capacity to make decisions, including whether they can make and communicate decisions with assistance from family members or advisors or by using technological aids. The court may find that a person can make decisions regarding specific aspects of their life and limit the scope of a guardian’s authority to allow them to make various decisions in their own life.

Conservatorship Circumstances

Conversely, for conservatorship, the court must consider whether the person cannot manage their financial affairs or assets due to illness or disability, substance abuse, addictions, incarceration, or disappearance. The court must also find that the protected person’s estate will be misused or wasted without a conservator. A court may establish conservatorship because a person:

• Cannot make or communicate responsible decisions regarding their financial affairs
• Risks misusing or wasting their estate due to mismanagement
• Risks becoming the victim of others’ misconduct (such as fraud or undue influence)

Ultimately, courts use guardianship and conservatorship to protect a person’s assets, legal affairs, health, and physical safety by putting a responsible party in charge of managing their interests.

How Does Someone Become a Guardian or Conservator?

Usually, a person becomes a guardian or conservator when they petition the court to establish the arrangement. Someone wishing to become a guardian or conservator for a vulnerable individual must be a responsible adult of sound mind. Next, they must serve a copy of their petition on the ward, the ward’s closest family members, and the ward’s legal counsel.

Even after a party has filed a petition for guardianship or conservatorship, another interested party, such as a family member, can ask the court to appoint them as guardian or conservator instead. A person can object to a petition for guardianship or conservatorship by demonstrating to the court that they can make and communicate decisions about their affairs.

Courts will typically appoint a family member or close friend to serve as a person’s guardian. However, courts may appoint a business or entity to serve as a conservator, such as an attorney, public fiduciary, or financial institution. Individuals or organizations serving as guardians or conservators may have to post a bond to provide financial security to the ward. This bond can compensate the ward for any losses caused by the guardian or conservator’s careless, reckless, or wrongful actions.

How Long Do Most Guardianships or Conservatorships Last?

A guardianship or conservatorship can last as long as the ward cannot manage their affairs independently or with the assistance of trusted advisors. The arrangement can end when the guardian or conservator files a termination petition alleging that the ward no longer needs guardianship or conservatorship. A ward can also petition to end their guardianship or conservatorship by demonstrating that they have regained the capacity to manage their affairs.

Guardianships and conservatorships sometimes end when disputes arise over a guardian or conservator’s performance, with subsequent legal proceedings revealing to the court that the ward has regained the capacity to manage their affairs. Otherwise, unless an interested party petitions to end the arrangement, it will continue until the ward’s death. Should a guardian or conservator pass away or cannot fulfill their duties, the court can appoint a substitute.

Contact an Arizona Guardianship/Conservatorship Lawyer

Do you have a vulnerable loved one who needs a trusted individual to look after their medical, financial, and legal affairs? If so, guardianship or conservatorship can help your family protect your loved one’s rights and interests. Contact Mushkatel, Gobbato, & Kile, P.L.L.C. today for a confidential initial consultation with an Arizona conservatorship/guardianship attorney to learn more about the difference between these arrangements in Arizona and determine which one is right for you and your family.