A guardian is a person who is given legal authority to care for another person who is unable to care for him or herself. A guardian must be appointed if a person is a minor (under the age of 18) or if the person is an incapacitated adult.
A conservator is someone who is appointed to manage the assets and financial affairs for someone who is unable to do it on their won. A conservator must be appointed if a person is a minor or if the person is an incapacitated adult.
Arizona regards anyone under the age of 18 as a minor. As a minor, a child is presumed incapable of caring for his or her own interests and finances. If a minor child loses his or her parents, or if the parents pass away, someone must be appointed to care for the minor child and his or her finances. A guardian of a minor child is responsible for doing everything a parent would traditionally do: provide supervision, food, shelter, education and medical care. Unlike a parent, a guardian doesn’t automatically have the authority to manage the minor child’s finances or any money left to the minor child. This is done by a conservator. While a guardian and conservator can be the same person, it does not have to be.
It is critical that every parent of a minor child name a guardian and conservator to care for their child in the event something happens to the parent. In Arizona, the only place you can name a guardian and conservator is a Last Will and Testament.
If an adult becomes incapacitated a judge will appoint a guardian and/or conservator. Often, adults are deemed incapacitated when they suffer from a physical or mental illness, substance abuse or disability that renders them unable to competently make their own decisions. A guardian is appointed for an incapacitated adult and makes decisions for the adult like housing, education, food, clothing and other activities. Likewise, a conservator is appointed to manage the incapacitated adult’s finances. Once a conservator is appointed, the conservator is able to access the adult’s assets and use them to pay for the costs of care and other expenses of the adult.
A guardianship cannot be avoided for a minor child. Although a parent may appoint a guardian in their Last Will and Testament, a court proceeding is still necessary to formalize and effectuate the appointment. A guardianship may be avoided for an incapacitated adult if while the adult is healthy he or she creates a Health Care Power of Attorney that nominates one or more persons to make medical decisions in the event the adult becomes unable to do so on their own. An appointment of a health care agent under a Health Care Power of attorney should obviate the need to go to court and appoint a separate guardian. One can state in their Health Care Power of Attorney that should it become necessary to go to court and have a guardian appointed by a judge that the person named in the Health Care Power of Attorney should be named guardian. The benefit to this is that you – not a judge – get to decide who will make these very personal decisions for you regarding your care, including your health care. In addition, a guardianship proceeding can take months and cost thousands of dollars.
A conservatorship cannot be avoided for a minor child. Although a parent may name a conservator to manage their minor child’s assets in their Last Will and Testament, a court proceeding is still required to formalize and effectuate the appointment. However, a conservatorship for an adult can totally be avoided. One way to avoid a conservatorship is for the adult to create a Durable Power of Attorney while they are still healthy. An agent named under a Durable Power of Attorney can do pretty much anything that the adult could have done on their own if they were able. This includes using the adult’s assets to pay for the adults care and living expenses, manage their business, manage all other assets, open their mail and even arrange for the care of their pets. Another option is to create a Revocable Living Trust and transfer your assets into the trust while you are alive (this process is called trust funding). A Revocable Living Trust not only provides for the management and transfer of assets after the trustmaker has passed, it also provides for the management of assets while the trustmaker is incapacitated. With either a Durable Power of Attorney and/or fully funded Revocable Living Trust, a conservatorship can be avoided entirely for an incapacitated adult.
Planning today to avoid or minimize a potential guardianship and/or conservatorship proceeding can save you and your family thousands of dollars and months spent in a probate court. While a court proceeding is still necessary to effectuate and formalize a minor child’s guardian or conservator, having a parent nominate a person in their Last Will and Testament can help avoid family strife over who should be named and potentially months of additional court time. The person(s) a parent picks to act as their child’s guardian and conservator is the person who the court presumes should be appointed. Likewise, an adult can totally avoid a guardianship and/or conservatorship proceeding by creating their estate planning documents now, while they are still healthy. This will also save time and money spent in a probate court and will allow the family to focus on what’s important – caring for their loved one.
At the Neal Law Firm, we are here to help. Arizona estate planning and probate attorney Abigail Neal handles guardianships and conservatorships and also drafts estate plans that help people plan ahead for the future and hopefully avoid having to enter a probate court. Call us today at (480) 699-7992 to get started.
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