What is the difference between a guardian and a conservator?
The brief explanation is that a guardian is responsible for the medical care, personal care, and living arrangements of a disabled person. A conservator is responsible for the person's money and property. Of course, this is an oversimplification. There are cases where a guardian handles money and cases where a conservator makes personal decisions for the protected person. There are separate statutes covering disabled adults from those intended to protect minors, but the principles and procedures are quite similar. In this article, we will discuss the disabled and protected adult laws and leave minors for another day.
The need for a guardian, conservator, or both can arise in many ways. Perhaps an older adult develops Alzheimer's or dementia and is no longer able to make rational decisions. Perhaps an adult child has suffered brain damage in an accident or a family member has a serious mental illness and has lost touch with reality. Brain tumors, drug overdoses, meningitis, and other serious illnesses can leave a family devastated when dealing with a disabled adult.
In the unfortunate event that you find yourself caring for a disabled adult, the first question you will need to answer is this. Does the family member need a guardian, conservator, or both? If the family member's only income is Social Security or SSI, one guardian may suffice. If the family member can live alone and care for the family's personal needs, but lacks the ability to manage financial affairs, a guardian may be needed. In many cases, both a guardian and a trustee are needed when the incapacitated person is unable to care for themselves or their possessions. The subject of a guardianship hearing is known as an "incapable person." The subject of a guardianship is called a "protected person."
Establishment and Administration of a Guardianship
The Petition and the Hearing
All guardianship and conservatorship statutes are found in Title 14 of the Arizona Revised Statutes. The statutes detail the entire process. They dictate who can apply to be guardian or conservator; detail the application process and the procedures to follow. The statutes also explain the duties of a guardian or trustee and include safeguards to protect the rights and property of the disabled adult. A guardian may be a family member, trustee, or someone the incapacitated adult has named in advance in a written document.
A parent with a disabled adult child can transfer custody after death with a will or other signed document. However, other family members have the right to object and demand that a court determine the best candidate. The same idea holds true for the spouse of a disabled adult. The spouse can use a will or other signed document to transfer guardianship. Family members have the right to object and demand a court hearing.
In most cases, guardians are appointed by the court after a court investigation and hearing. It is not a slam dunk process. The judicial process provides safeguards to protect the rights of the disabled person. The procedure is set forth in A.R.S. §14-5303. Any interested party may file a petition to be appointed as guardian of the allegedly incompetent adult. The petition must be filed in the municipality where the incapacitated person resides. The petition requires a lot of detailed information, such as why the petitioner wants to be guardian, the name of the next of kin living relative, a description of the incapacitated adult's property and its value. You must also include a statement of why the petitioner believes a guardian is necessary. Much more information is needed, but these are the highlights.
When the court receives a Petition for Guardianship, it sets a date for the hearing. The court also appoints an attorney to represent the allegedly incapacitated person (unless they already have a private attorney). The court also appoints an investigator who interviews the allegedly incapacitated adult and prepares a report. If the subject of the Action does not have a personal physician or psychiatrist, the court will appoint a physician to examine him. The examining doctor or nurse then submits a report to the court containing an opinion as to the need for guardianship and whether the presumed incapable is incapable. At the hearing, the judge decides if a guardian is needed. In that case, the judge decides if the petitioner is a suitable candidate.
Before being appointed guardian or trustee, the petitioner must file an affidavit indicating whether the petitioner has ever been convicted of a crime in any jurisdiction, indicating the petitioner's relationship to the proposed guardianship, and whether the petitioner has ever been removed from being guardian. or conservative. Other information should be in the statement, but these are some of the key questions.
Duties and requirements of the tutor
Being a guardian means that you are accountable to the court for everything you do and every decision you make. Basically, the guardian of a disabled adult has the same rights, duties and obligations as the parent of a minor. The incapacitated adult is called the “custodian” of the guardian. The guardian has the right to custody of the ward and to make decisions about where the ward will live. This includes the right to place the conservatee in a group home or institutional setting. The guardian is obligated to take reasonable care of the ward's property and to ensure appropriate medical, psychological, and social services for the ward. The guardian makes medical decisions and authorizes necessary medical procedures or services on the ward. The court may require the guardian to be bound, depending on the relationship and the circumstances.
Each year, the guardian must file a report with the court. The report, which is also sent to relatives and the ward lawyer, should contain detailed information about the health and conditions of the ward, where the patient lives, how often the person in charge visits the ward, a report from the ward doctor or nurse, changes in ward conditions, and other information. If the guardian is dealing with Social Security or other income, she will need to account for how the money was spent. If the guardian ceases to serve, or if the guardian becomes incapacitated or dies, the court will address the question of a replacement.
Petition and processing of a guardianship
A conservator has the same duties and obligations as a property manager. (ARS §14-5417). The petition and notice provisions are similar to those for a guardian. (A.R.S § 14-5404 and 14-5405). The court's criteria for appointing a trustee are different than the criteria for appointing a guardian. The court must determine whether the subject of the petition is unable to manage his or her estate and financial affairs effectively due to mental or physical illness, drug or alcohol addiction, imprisonment, detention by a foreign power, or disappearance. If the person is incapacitated, missing, or incarcerated and that person's property is dissipated or wasted without a competent administrator, the court will likely grant a Petition for Guardianship. The conservator may be a family member, someone appointed in writing when the protected person was competent, a bank, public trust, or other financial institution.
The petitioner must provide the court with a complete set of fingerprints and allow the court to perform a background check. The Petition for Guardianship requires detailed information about the subject of the Petition and about the Petitioner's interest in becoming conservator. It also requires information about the property that the petitioner is trying to protect. Notice must be given to all interested parties. The court will appoint an attorney to represent the subject of the Complaint and may have the matter reviewed by a physician or mental health professional. An investigator is also assigned to interview the subject and perhaps family and friends. The subject has the right to be present at the hearing and to testify or question witnesses. If the court grants the petition, the new conservator files papers accepting the role of conservator and obtains letters from the conservator authorizing him or her to handle all of the conservatee's financial affairs.
Once a conservator is appointed, the court assumes the supervisory role and requires accounting reports from the conservator each year. Unless the registrar is a bank or other financial institution, the court will likely require the registrar to provide a guarantee to the court. The curator must be a guarantor of the added value of the assets of the protected person. If the conservator mismanages the estate, the bond will be used to reimburse the protected person. Professional conservators, such as banks, lawyers, or trustees, have the right to seek compensation for their services. The amount of compensation is determined by the court. Family members can sue the court for damages, but the claim is rarely granted unless the estate is large and complex.
Within 90 days of appointment, the conservator must file an inventory of the estate with the court. The inventory must be detailed and contain the fair market value of each asset. Then, each year after appointment, the conservator submits an annual report to the court. The annual report must describe all activities on the property during the previous year. You must list properties and investments bought and sold, gains and losses, improvements made to real property, etc.
The protected person or other interested parties may apply to the court for the termination of the guardianship. The court will hold a hearing and decide if the protected person has recovered from their disability and can now manage their financial affairs. This can happen when an alcoholic or drug addict recovers and stays sober. Guardianship can also be terminated by judicial process if the protected person dies. If the guardian dies or becomes incapacitated, or if the guardian no longer wishes to serve, the court may appoint a replacement.
Any person interested in the welfare of a minor may petition the court for appointment of a Title 14 guardian. A guardian may be appointed when someone other than the parent wants to be appointed by the court to take over parental responsibilities, such as decisions regarding housing, medical care, and education.Does guardianship override parental rights Arizona? ›
The appointment of a guardian does not terminate the parents' rights or affect the child's inheritance rights or affect the parent's obligation to contribute to the support of the child.How long does it take to get guardianship in AZ? ›
How Long Does it Take to Get Guardianship? The length of guardianship proceedings vary case to case. If nobody contests the guardianship or the petitioner's appointment, it may only take 1 – 2 months. If there are complications, it could take 3 – 4 months.What is a limited guardianship in Arizona? ›
Limited guardianship - allows the guardian to only manage some of the affairs of the ward. General guardianship - gives the guardian the right to to manage all business and personal matters for the ward. Hearing.How long does guardianship last in Arizona? ›
The guardianship is granted through juvenile court. These guardianships are permanent, meaning you will keep the child in your care until he or she is either 18 years old, or there is a court order revoking the guardianship.How much does a guardian get paid in Arizona? ›
How much does a Guardianship make in Arizona? As of Feb 15, 2023, the average annual pay for the Guardianship jobs category in Arizona is $52,812 a year. Just in case you need a simple salary calculator, that works out to be approximately $25.39 an hour. This is the equivalent of $1,015/week or $4,401/month.Can a parent change guardianship to another person? ›
There are a few different options to change the guardian on the case. Someone might want to be a co-guardian with the current guardian, or be a replacement guardian if the current guardian is unable to continue. The person who wants to be the new guardian would file a Petition for Appointment of Successor/Co-Guardian.Can permanent guardianship be terminated Arizona? ›
A permanent guardianship can be revoked. The child, one of the child's parents, or any party who was involved in the dependency proceeding can file a petition with the court to revoke the permanent guardianship.Do guardians have parental responsibility? ›
As mentioned above, special guardians share parental responsibility with the child's birth parents but are able to make nearly all decisions about the child without the birth parents' consent or even knowledge. As the child's primary carer they are responsible for all aspects of their wellbeing.How do I get emergency guardianship in AZ? ›
To obtain emergency guardianship, a person must file a petition with the court. An emergency guardianship can be beneficial because it is an expedited guardianship. An emergency guardianship is typically chosen when imminent financial harm, physical harm, or death is going to happen to an incapacitated person.
First, there are two forms of guardianship: Title 14, which are revocable guardianships by consent of the parent, and Title 8, which are more permanent guardianships often resulting from a dependency petition.
To become a legal guardian in Arizona, you must file a petition with the court and attend a hearing. At the hearing, you must provide documentation to the court about the case. Only a judge can make someone a legal guardian. It must be shown that it is in the best interest of all parties involved.What is legal guardianship for adults in Arizona? ›
In Arizona, a guardian may be appointed for an adult who is “incapacitated.” An adult is “incapacitated” when the person “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 ...What is a Title 8 guardianship in Arizona? ›
A guardian is assigned the care, custody and supervision of a child by the court. This means the guardian has rights and responsibilities in making important decisions affecting the life of a child.What is temporary guardianship in Arizona? ›
A temporary guardianship or conservatorship appointment may be requested when you need the guardian or conservator for a set period of time of no more than six months, and/or that there is an emergency that requires immediate appointment action to protect a person who cannot handle his or her own affairs, or to deal ...What is the difference between conservatorship and guardianship in Arizona? ›
While they both concern the legal authority to care for a minor or an incapacitated adult, there's actually an important distinction between the two. Guardians are appointed to make important health and welfare decisions, and conservators are appointed to handle someone's assets and financial affairs.How many guardians can a child have? ›
How Many Guardians Can My Child Have? Most parents prefer to appoint two people (usually a couple) as guardians for their child, however, you can choose up to four people.What is the difference between conservatorship and guardianship? ›
Guardianship: What's the Difference? Generally, guardians have control over the every-day decisions and care of a minor. Conservators have similar control over an adult, but they're typically limited to financial decisions.How much is guardians allowance? ›
You could get Guardian's Allowance if you're bringing up a child whose parents have died. You may also be eligible if there's one surviving parent. The Guardian's Allowance rate is £18.55 a week.What is guardian allowance? ›
Guardian's Allowance is a tax-free benefit paid to someone looking after a child whose parents have died. In some circumstances it can be paid if only one parent has died.
An application to remove a guardian may be made by any person with parental responsibility or, with leave of the court, by the child. An order may also be made by the court of its own motion in any family proceedings.Can you have multiple guardians? ›
When a child has more than one legal guardian, this arrangement is called a co-guardianship. Co-guardians are people who may equally share roles in a child's life, but they can also serve roles in a child's life that don't overlap.What is a court order for guardianship? ›
A court-ordered guardianship asks a judge to appoint a guardian indefinitely. There are a number of forms you must fill out to open a case. Read on for more information about the forms you must complete and how to open a case.When a guardian appointed by court is removed? ›
When a guardian appointed or declared by the Court is discharged, or, under the law to which the ward is subject, ceases to be entitled to act, or when any such guardian or a guardian appointed by will or other instrument is removed or dies, the Court, of its own motion or on application under Chapter II, may, if the ...How do I get my child back from temporary guardianship? ›
The child, the guardian or any third party can make an application to the court to have the guardianship reversed. Guardianship agreements can only be reversed by the court who have the power to terminate the agreement. The court will only reverse the agreement where doing so is in the best interests of the child.How do I transfer guardianship in Arizona? ›
- Obtain a Provisional Order Authorizing Transfer to Arizona. ...
- File a Petition in Arizona Court. ...
- Schedule a Non-Appearance Hearing. ...
- Ensure the Ward has an Attorney. ...
- Serve Notice of the Petition for Acceptance of Transfer. ...
- File Proof of Notice.
24. Duties of guardian of the person. —A guardian of the person of a ward is charged with the custody of the ward and must look to his support, health and education, and such other matters as the law to which the ward is subject requires.What is the legal responsibility of a guardian? ›
When you are appointed as a legal guardian you are responsible for the wellbeing and safety of those children under your guardianship. Being a Guardian includes making sure that the children are fed, clothed, attend school and looked after in the same way they would be if their parents were around to do so.What powers and responsibilities does the guardian have? ›
The guardian of the estate is required to manage the child's funds, collect and make an inventory of the assets, keep accurate financial records, and regularly file financial accountings with the court.
All mothers, irrespective of whether they are married or unmarried, have automatic guardianship status in relation to their children, unless they give the child up for adoption. A father who is married to the mother of his child also has automatic guardianship rights in relation to that child.What are grounds for emergency custody in AZ? ›
Specifically, the basis for the emergency child custody orders must establish that parenting time with a parent will cause an imminent risk of serious physical, emotional, or psychological harm.How do I get guardianship of a parent with dementia in Arizona? ›
The guardianship process begins with a family member or friend submitting a petition to the county court. The court will schedule a hearing, and the petitioner will be required to serve notice to the elderly adult, his or her family members, and applicable agencies.What is s7 guardianship? ›
Section 7 Guardianship orders are very rare in practice. Such an order gives the guardian (usually the Local Social Services Authority) the power to: Require the person to reside at a certain place; Require the person to attend a certain place for medical treatment, occupation, education or training; and/or.Who can be placed under guardianship? ›
Any relative or other person on behalf of a minor, or the minor himself if fourteen years of age or over, may petition for the appointment of a general guardian over the person or property, or both, of such minor.What is guardian status? ›
Guardianship is most frequently used when relative caregivers wish to provide a permanent home for the child and maintain the child's relationships with extended family members without a termination of parental rights, as is required for an adoption.How do I apply for legal guardianship? ›
How do I apply in South Africa for sole guardianship? You would need to apply to the court for sole custody of your child. You may also go to the Children's Court that of the High Court. After that, the court would determine whether it is in the child's best interests.How do you declare someone incompetent in Arizona? ›
To be declared incompetent or incapacitated for the purpose of a power of attorney, the principal's physician or psychologist simply needs to perform an evaluation and issue a letter detailing the status and extent of his or her mental capacity.How do I get guardianship of my grandchild in Arizona? ›
Grandparents Rights in AZ
If you believe your grandchild's living parent is incompetent, you can file with the court for In Loco Parentis full-time parenting time in Family Court or for guardianship in Juvenile Court, asking the judge to appoint you as your grandchild's guardian or the full-time custodian instead.
Conservators are court-appointed individuals who are given the ability to manage another person's finances and personal affairs. They're able to limit the conservatee's spending and, depending on the extent of the conservatorship, any other financial and personal decisions.
A ward of the state is usually a minor who has no parents and lives under protective custody of the state. In court, they're appointed a legal guardian to uphold their best interests. These guardians are appointed by the judge to make life decisions for someone who is either mentally incapable or a minor.How do I get a conservatorship in Arizona? ›
A Conservator is appointed following the filing of a petition with the Probate Division of the Superior Court and a hearing before a Judge or Commissioner. The petition must tell the Court why the appointment of a Conservator is necessary, what assets may be at risk, and who is being nominated to serve as Conservator.Who is entitled to a notice of a petition to appoint a permanent guardian in Arizona? ›
under Arizona law A.R.S.
A person nominated by the will of a deceased parent. Any non-parent relative of the protected person with whom the protected minor has resided for more than six months before the filing of the petition. A person nominated by someone who is caring for or paying benefits to the protected minor.
A guardian is someone who has the legal authority to care for another, and a conservator is someone who manages another's financial affairs.How do I become a guardian for the elderly in Arizona? ›
The guardianship process begins with a family member or friend submitting a petition to the county court. The court will schedule a hearing, and the petitioner will be required to serve notice to the elderly adult, his or her family members, and applicable agencies.How do you stop guardianship in Arizona? ›
Complete a Petition for Termination of Guardianship. Write neatly and use black ink. Sign the Petition in front of a notary public or a Clerk of Superior Court.