When an incapacitated person needs care, you can petition the court for a guardianship or a conservatorship for the incapacitated individual. The incapacity may be due to a legal disability, such as being under the age of 18, or a physical or mental disability affecting an elderly person. The difference between a guardianship and a conservatorship is that the guardian cares for the person, whereas the conservator cares for the person’s property (whether this is a house, bank account, or the proceeds of a personal injury settlement).
Guardians and conservators are fiduciaries. This means that they owe a high duty of care to the incapacitated individual and will be supervised by the court. In a conservatorship, the court will generally require either restricted (no-access) bank accounts or annual accountings to be submitted and reviewed each year.
While minors under the age of 18 are presumed not to be competent due to their young age, adults over the age of 18 are presumed to be competent until proven otherwise. The strong presumption of competence is difficult to overcome. When you seek to be a guardian or conservator of a disabled person, you will not only have the expense of paying your lawyer, but you will also have a court-appointed lawyer for the incapacitated person to pay for. In addition, you will need to pay a court-appointed doctor to examine the person and pay for a court-appointed visitor.
Guardianships and conservatorships are sometimes required but can usually be avoided with proper estate planning. This includes either a will- or trust-based plan with appropriate financial and medical directives, such as durable powers of attorney that remain valid if a person becomes disabled. Our office specializes in estate planning for Arizona families to help spare you the expense and the thousands of dollars that unprepared people often spend on court proceedings such as guardianship and conservatorship cases.
Estate planning is not just for rich people!
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