Guardianships & Conservatorships

Guardianships & Conservatorships

Arizona Consumers’ Guide to

Table of Contents

Guardianships & Conservatorships 1

I. Guardianships...........................................3

II. Conservatorships....................................6

III. The Appointment Process......................8

IV. Alternatives to Guardianships &

Conservatorships.........................................10

V. Case Studies............................................13

VI. Selecting a Guardianship

Attorney........................................................16

Our Elder Law department offers the following services:

Medicaid / ALTCS Planning

Public Benefits Analysis

Special Needs Trusts

Conservatorships & Guardianships

Probate

Estate Planning

Trust Administration & Litigation

Elder Abuse & Exploitation

Personal Injury

Veterans’ Asset & Income Planning

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Employee Benefits • Financial Institutions Creditor/Debtor Issues • HOA Law • Chapter 7, 11, 13

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For more information on these practice areas, call the JacksonWhite Elder Law department at 1.800.243.1160.

JacksonWhite Attorneys at Law

© 2012 Jackson White P.C. All rights reserved. This publication is provided for informational purposes only and should not be construed as individual legal advice. Please consult a knowledgeable attorney regarding your specific legal needs.

Guardianships & Conservatorships2 Guardianships & Conservatorships 3

Guardianships

Despite the miracle of modern medicine, many people encounter debilitating health issues as they near the end of life. You might even be caring for an elderly parent or family member right now who is faced with unfamiliar and uncomfortable health issues. And even if these issues are irreversible, there are legal tools that can help you provide the person for whom you are concerned the best possible care.

Recognizing that a person needs medical care might be a first step as you move forward to address the issues ahead. Along this path, you might encounter legal issues, such as helping the person for whom you are concerned manage his or her financial affairs if he or she loses capacity. Likewise, you might have to obtain authorization to make medical decisions for this person. These are difficult circumstances that will demand difficult decisions – decisions for which you should know your legal options.

This guide will help if the person for whom you are concerned is suddenly having difficulty with routine tasks, has become aggressive, or is having difficulty with comprehension. This guide will also help you make your own medical and financial wishes known, so that if you ever need assistance with medical and financial tasks yourself, your family will know how to proceed with certainty. Whether a loved one immediately needs a legal guardianship or conservatorship, or you are merely curious about advance health care planning, this guide is designed for you.

Whatever your specific situation, moving forward can be very difficult if the person for whom you are concerned no longer has good judgment, or is unable to communicate his or her decisions. You can resolve these complex issues most effectively, however, by obtaining good information. As you seek answers to your legal questions, this guide might

provide you with insight into your situation. And for those questions or concerns that are not covered in this guide, please do not hesitate to contact an Arizona guardianship lawyer at JacksonWhite.

Guardianships

What is a guardian?A guardian is court-appointed to make personal decisions for somebody who is legally incapacitated, called the “ward.” If appointed to act as guardian, your responsibility to the ward would be similar to that of a parent to a child, except you would not be personally financially responsible for the ward. Your primary responsibilities would involve making the ward’s medical and placement decisions.

When is a guardianship necessary?You might consider a guardianship for a person who lacks the understanding or capacity to make or communicate responsible

personal decisions. This incapacity may stem from the aging process, a disability, a mental or physical illness, or chronic substance abuse. To help you assess whether pursuing a guardianship is necessary, begin by evaluating the following questions:

» Does the person have difficulty doing familiar tasks?» Can the person communicate well?» Does the person remember to take medications as prescribed?» Does the person become easily agitated, aggressive, or combative?» Does the person often lose things?» Does the person ever get lost or disoriented?» Can the person attend to and provide necessary food, shelter, clothing, and medical care so as to avoid physical harm or illness?» Could the person remain safe in a stressful or emergency situation, such as a fire, a power outage, or crossing a busy street?


It might be that the person for whom you are concerned already has a health care power of attorney in place, authorizing somebody else to make medical and placement decisions on his or her behalf. While a health care power of attorney might help the person avoid a guardianship proceeding, a guardianship might still be necessary if the named agent becomes unable or unwilling to act. Or, if the person becomes uncooperative or antagonistic towards the agent, a guardian might offer the only way for that person to receive adequate care, treatment, and placement.

What are a guardian’s duties?A guardian must always consider the ward’s wishes, and assume responsibility of the ward’s care, comfort, and maintenance. A big part of this involves finding living arrangements that are most appropriate and least restrictive based on the ward’s needs, abilities, and financial resources. A guardian must also secure appropriate medical care

and professional services for the ward, which could include placing the ward in an assisted living or skilled nursing facility.

A guardian is not charged with managing the ward’s finances unless specifically appointed by the court to do so. A guardian who receives any money on the ward’s behalf must use that money only for the ward’s care and support, never for his or her personal benefit unless the court has authorized it. Lastly, a guardian must make annual reports to the court about the ward’s health, welfare, and status. How is a guardian appointed?To establish a guardianship, you begin by petitioning the court to appoint a guardian for the person for whom you are concerned. Upon receiving the petition, the court appoints an attorney to represent the proposed ward, and schedules a hearing on the matter, where it considers all of the relevant guardianship information. To prepare for the hearing, a court

investigator interviews family and friends, and the court requests a physician’s report regarding capacity issues. On the day of the hearing, the court examines the guardianship paperwork, considers all of the relevant testimony, and appoints a guardian if appropriate. With the exception of certain medical emergencies, this process takes up to eight weeks. Guardianship proceedings can become quite complicated, you may need a guardianship attorney to help you with this process.

What is a “mental health” guardianship?As a guardian, you can only consent to outpatient mental health treatment on the ward’s behalf. If the ward requires inpatient mental health treatment, however, an ordinary guardianship will not suffice. To consent to such treatment you must also have a mental health guardianship that allows you to consent to inpatient care at a behavioral health facility if and when the ward requires it.

A mental health guardianship is only

valid for up to one year, and you can request the additional authority at the initial guardianship proceedings or any time thereafter. You might consider seeking a mental health guardianship if the person for whom you are concerned exhibits depression, combativeness, or aggression – behaviors that many times indicate a medication adjustment is necessary.

Inpatient mental health treatment is often provided to seniors at a hospital’s geriatric psychiatric unit. A typical stay ranges from a few days to a few weeks, depending on how long it takes to stabilize the patient. After the inpatient treatment, the patient is often able to return to a residential care setting.


Conservatorships

What is a conservator?A conservator is court-appointed to make financial decisions for somebody who is legally incapacitated, called the “protected person.” The court can give conservators very broad authority to handle all of the protected person’s assets, or very limited powers, depending on the person’s specific needs and limitations. If appointed to act as conservator, your responsibilities would be confined to financial and legal matters, and would not extend to handling the protected person’s medical issues.

When is a conservatorship necessary?You might consider seeking a conservatorship for a person who has lost the capacity to properly manage his or her property, and who does not have a valid financial power of attorney. A conservatorship might even be

necessary for a person with a financial power of attorney if the agent under the power of attorney fails to act in the person’s best interest. When deciding whether to pursue a conservatorship, you should evaluate the following questions:

» Can the person handle simple financial matters, such as counting change, writing checks, and balancing a checkbook?

» Is the person susceptible to financial scams and persuasion?

» Does the person know what and where his or her assets are?

If single transaction authority can provide the person for whom you are concerned with adequate protection, then a full conservatorship might not be necessary. For example, if the person owns everything except for one account jointly with a spouse, single transaction authority would suffice to re-title the one account so the spouse could help

with its management. Whether for a full conservatorship or single transaction authority, however, you cannot assume responsibility of the protected person’s affairs without the court’s appointment.

What are the conservator’s duties? If appointed as conservator, your responsibilities could include:

» Authorizing and paying debts and expenses for the protected person.» Bringing and defending lawsuits for the protected person.» Making an inventory of the protected person’s assets, indicating the fair market value of each asset.» Prudently investing the protected person’s assets.» Acquiring or disposing of the protected person’s property.» Preserving and protecting the protected persons property.» Paying income and property taxes for the protected person.

» Keeping detailed records of all monies coming into or going out of the protected person’s accounts.» Providing the court with an annual accounting.

Your precise responsibilities as conservator ultimately depend on the court’s order. One rule that is always in place, however, is that you can never use the protected person’s money for your benefit without the court’s approval.

How is a conservator appointed?The court of the county in which the protected person resides can establish a conservatorship. To petition the court, you must be an interested party, including relatives, or be somebody who would be affected from mismanagement of the proposed protected person’s assets. Upon your petition, the court schedules a hearing on the matter, for which it appoints an attorney to represent the proposed protected person, and it hears

Conservatorships

Guardianships & Conservatorships8

testimony from family members, friends, and medical experts. The court appoints a conservator if it determines that the proposed protected person is in need of financial protection.

The Appointment Process To have a guardian or conservator appointed, you begin by petitioning the court for a guardianship, a conservatorship, or a combination of the two. You must also give notice of the proceeding to the person for whom you are concerned, and to any other interested parties as well. The court then sets a hearing and appoints an attorney to represent the proposed ward or protected person, and also appoints an investigator and a medical expert to inform its decision as to the person’s capacity.

The proposed ward or protected person is entitled to appear at all of the hearings. The court

The Appointment Process

schedules a second hearing to hear all of the relevant testimony if the person, or a member of his or her family, contests the proceedings. At the hearing, the court hears testimony from all interested parties, including the investigator and the medical expert, and appoints a guardian or conservator if necessary. This entire process takes up to eight weeks.

The court can appoint one person as guardian and another person as conservator, or it can appoint the same person to act in both capacities. There are also licensed fiduciaries who can be appointed by the court. The court issues the guardian and/or conservator letters of appointment, which verify that the appointed person has authority to act on behalf of the ward/protected person. If the court appoints you as a guardian or a conservator, these letters will allow you to act in your appointed capacity.

Emergency guardianship and conservatorship proceedingsIf you cannot wait eight weeks to establish a guardianship or conservatorship, you can petition the court for an emergency appointment. To speed things along, however, the court must find a compelling reason, such as a financial or medical crisis that demands immediate action. Often, it is best to petition for a temporary guardianship or conservatorship when you petition for the permanent appointment. The court will hold a hearing on the temporary appointment within three to ten days of receiving the petition. If the court appoints a temporary guardian or conservator, this person retains authority until the court holds a full hearing on the matter, at which time the court may extend the appointment to a full guardianship or conservatorship.

Getting started You should probably begin by consulting with an experienced


attorney who can assess your situation. Bring to the consultation important documents, such as powers of attorney, financial statements, trusts, and wills, belonging to the person for whom you are concerned. The attorney can evaluate this information and help you determine a suitable course of action. If it turns out that a guardianship or conservatorship is necessary, the attorney can then prepare the documents and initiate the court proceedings.

Going forward without legal counselAfter reading this guide, you might wish to handle the guardianship or conservatorship proceeding yourself, without a guardianship attorney. And while this process can become complicated, it is quite possible for you to prepare the documents and represent yourself in court. In fact, to facilitate self-service, the Maricopa County Superior Court has made all of the necessary forms and instructions available online, at

www.superiorcourt.maricopa.gov. If you attempt to move forward without an attorney, and you run into obstacles along the way, it is never too late to call a guardianship attorney for counsel.

Alternatives to Guardianships & Conservatorships

Guardianships and conservatorships are important tools when they are necessary to protect a person’s wellbeing. However, people can often save their family members the trouble of going through a guardianship or conservatorship proceeding by making some simple advance preparations. As such, if the person for whom you are concerned has capacity to create legal documents, you might direct him or her to speak with an attorney about the planning strategies that can protect his or her financial and medical wishes. Likewise, if you have not yet prepared for the future, you too


should meet with an attorney who can explain the following planning tools in greater detail.

Alternatives to guardianships

Healthcare power of attorney

A health care power of attorney allows you to designate an agent to make your health care decisions if you lose capacity to make these decisions yourself. You can revoke or change your power of attorney at any time, so long as you still have capacity. To be valid, a power of attorney must:

» Clearly designate a specific person to make your health care decisions; » Be signed by a principal who is of sound mind and free from duress; and » Be witnessed by at least one adult who is not your agent, relative, health care provider, or heir.

Mental health care power of attorney

By creating a mental health care power of attorney you can appoint an agent you trust to make your mental health care decisions. The agent can be the same person who makes your health care decisions or somebody else, but without this specific power of attorney, the agent will be unable to admit you for inpatient mental health treatment without court proceedings. Also, a mental health care power of attorney can be incorporated with the regular health care power of attorney so that one document covers both medical and mental health issues, or it can be a separate document altogether.

SurrogatesIf you have neither a power of attorney nor an appointed guardian, Arizona law may allow a statutory surrogate to make your health care decisions if you lose capacity. In the event that a surrogate assumes responsibility of your health care, he


or she can obtain ordinary health care on your behalf. The surrogate cannot, however, withdraw life-sustaining treatment, or consent to inpatient mental health care, except in very limited circumstances. By statute, the following people are given priority in the order given to act as your surrogate:

» Your spouse

» Your child

» Your parent

» Your domestic partner, if you are unmarried and nobody has accepted financial responsibility

» Your sibling

» Your close friend who knows your health care wishes

» Your attending physician, if nobody else can be located

Living willsA living will makes your specific health care decisions known to others, whether those wishes are specific or general. For instance, you could use a living will to proscribe life-sustaining treatment, or you could use a living will to leave specific

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Alternatives to Guardianships & Conservatorships


instructions on pain relief, antibiotics, hydration, feeding, and resuscitation. By specifying all of your health care decisions in advance, you can avoid a guardianship in the future.

Alternatives to conservatorships

Durable financial power of attorney

A financial power of attorney allows you to appoint an agent to handle your financial and legal affairs if you lose capacity. You can revoke or change the financial power of attorney at any time, so long as you still have capacity. To establish a valid financial power of attorney, you must adhere to certain guidelines:

» You must understand the nature and effect of signing the financial power of attorney.» You must sign the financial power of attorney willingly.» You must initial any paragraph in the financial power of attorney that gives a benefit to the agent.» A notary and witness, other

than the agent, the agent’s spouse, or the agent’s children must sign the financial power of attorney.

Living trustsWith a living trust, you can appoint a trustee to manage the trust assets according to your wishes. By designating somebody other than yourself to serve as the trustee, you can ensure that the trust assets are protected even if you lose capacity. Trustees are bound by fiduciary duties to use the trust assets according to the terms of the trust, so you can implement financial strategies that will remain in effect even if you lose capacity. Of course, it takes foresight to establish an effective living trust, so you must have full capacity to create one. Also, living trusts are not suitable in every situation, as they can actually interfere with long-term health care planning. You should never establish a living trust without first speaking with a qualified Elder Law attorney.

Case Studies

Case Study #1: Beyond forgetfulnessLast year, Merv, who is an avid jewelry maker, began to have trouble remembering where he put the settings for the jewelry he was making. Within six months, Merv was forgetting how to use his rock saw, and could not remember the names of his grandchildren when they came to visit. Merv’s memory continued to deteriorate, and he began to wander away from home from time to time. Merv was also forgetting to eat unless food was put in front of him, and he could not remember how to use basic appliances. For instance, one day Merv put his frozen potpie in the dishwasher, apparently thinking it was the microwave. Merv is on medication for high blood pressure, but lately he has been refusing to take it. Merv has become more and more difficult to speak with. He can no longer understand


complicated ideas, and he has become grumpier and more difficult to get along with every day. Recently, a couple of young men came to the door selling candy to earn a trip to Hawaii. Merv invited them in and handed them a blank check to fill out for his signature. Merv likes to go to the bank and take out a couple of hundred dollars at a time so that he “won’t get caught short.”

Merv’s children have become more and more concerned about Merv, and they recently held a family conference. With much difficulty, the family persuaded Merv to get a checkup with his physician. The physician evaluated Merv and informed the family that Merv either needs in-home care or needs to reside in an assisted living facility. Merv does not recognize that he needs help, and he refuses to have anyone come to his home.

Case Studies

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He has always done everything for himself, and he says that he intends to continue to do so.

Merv’s family contacted a knowledgeable attorney about the options available to them. The family realized that a guardianship and conservatorship was the best way to provide Merv with an appropriate residential setting, and to handle Merv’s finances. At a hearing, the judge determined that Merv did require a guardian and conservator, and appointed one of Merv’s children to serve in both capacities.

Case Study #2: Mental health care and treatmentJoe and Lil have been married for 52 years, over the course of which they have developed strong and loving ties. In the last year or two, however, Joe developed Alzheimer’s disease, and he has had to move into an assisted living facility. Last week, Joe pushed one of the residents in the hallway, and

threw a lamp at the television set. When confronted by the facility administrator, Joe threatened him with violence, and he even lashed out at Lil during her last visit. The doctor explained that these behaviors occur because Joe’s medications are not properly adjusted, and that he needs to be admitted into an inpatient mental health facility to have his medications regulated. A mental health facility, such as a geriatric psychiatric unit in the local hospital, cannot admit Joe unless one of the following is true:

Case Study #3: Agent steals from principalPaul appointed his best friend, Alice, to be his agent under a durable financial power of attorney. Paul

continued to handle his own affairs until he became incapacitated, at which time Alice stepped forward as his agent. For several months, Alice dutifully paid caregivers to care for Paul, but she began to miss the companionship that her and Paul once shared. To ease her loneliness, Alice began to order merchandise from catalogs and from the television, despite her limited income. Alice thought that Paul would not mind if she paid for her purchases from his account. Alice, acting as agent under the power of attorney, wrote several checks totaling $3,000 for items she ordered for herself.

Unfortunately for Alice – but fortunately for Paul – someone called Adult Protective Services, which conducted an investigation and contacted Paul’s sister in another state. Paul’s sister then petitioned the court for the appointment of a conservator to manage Paul’s assets. Alice faced criminal charges for theft, and the conservator also initiated and won


» Joe has the capacity to give informed consent and is willing to admit himself for treatment. Under these circumstances, Joe could be admitted for treatment, but in Joe’s case, Joe probably does not have the capacity to give informed consent.

» Joe has appointed an agent under a mental health power

of attorney who has authority to consent to inpatient mental health care and treatment. Under these circumstances, Joe’s agent could consent to inpatient treatment for Joe, and Joe could be admitted if a psychologist or psychiatrist evaluates Joe and states in writing that Joe needs inpatient mental health care and treatment.

» Joe has a guardian appointed by the court who has been authorized to consent on Joe’s behalf for inpatient mental health care and treatment. Under these circumstances, Joe’s guardian could consent to inpatient treatment for Joe, and Joe could be admitted for inpatient mental health care and treatment.

a civil lawsuit against Alice for her misuse of the power of attorney. The court ordered Alice to pay restitution to Paul’s estate in the amount of $6,000, two times what she had taken, and attorney’s fees for herself and for the conservator.

Selecting a Guardianship Attorney

It is always better to make legal preparations sooner rather than later. More often than not, making advance preparations can help you avoid future complications. Nevertheless, even if you have made no advance preparations, a qualified attorney can help you establish the legal tools you need to properly handle your situation.

When selecting an attorney to handle these issues, it is important to closely examine your options. Not every attorney has experience with advance planning,

guardianships, and conservatorships, so make sure you find an attorney who can competently address these issues. It would be best for you to choose a firm that regularly practices in the area of Elder Law so you can have confidence that your attorney possesses the skills to competently assess your situation. In the end, you will find that working with a knowledgeable attorney not only saves you time and money, but also provides you with peace of mind.

The Elder Law department of JacksonWhite has practiced in this area for many years. Our attorneys rely on their years of experience to provide clients with straightforward and effective counsel. If you have any questions that were not covered in this guide, please do not hesitate to contact one of the qualified Elder Law attorneys at JacksonWhite.


Selecting a Guardianship AttorneyJacksonWhite publishes a number of legal resource guides. To order any of these FREE educational resources, call 800.243.1160 or visit www.JacksonWhiteLaw.com.

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