Who Are Guardians and Conservators?
You may have heard of guardians and conservators and are wondering what those terms mean. A guardian is someone who has the legal authority to care for another. A conservator is someone who manages another's financial affairs. Guardians and conservators are necessary when people are unable to care for themselves or manage their own finances. Guardians and conservators are typically needed when a person is a minor (under age 18) or an incapacitated adult.
Why Would a Minor Need a Guardian or Conservator?
In Arizona, a child is deemed a minor until he or she reaches the age of 18. As a minor, a child is not capable of caring for his or her own interests. If a minor child's parents pass away or become incapacitated, someone must care for the minor child. A guardian of a minor is someone other than a parent who is appointed by a court to make decisions for the minor child. Usually, a guardian of a minor has the same responsibility and authority as a parent to provide food, housing, education, medical care and supervision. However, unlike a parent, a guardian does not have to provide for the minor child using the guardian's own personal funds and is not necessarily financially responsible for the actions of the minor child. Naming a guardian for minor children is one of the most important reasons for parents to create an estate plan. A Will is the only document in which parents can name a guardian for their minor child(ren).
A minor child might need a conservator if his or her parents pass away and leave money or property to the minor child. As a minor, the child is not capable of holding property and managing his or her finances. Instead, a conservator is appointed to manage the financial affairs of the minor child. Parents may also name a conservator in their Wills.
Why Would an Adult Need a Guardian or Conservator?
A judge will appoint a guardian for an adult who, because of mental or physical illness, disability or substance abuse, cannot make their own decisions. Under Arizona law, such a person is “incapacitated” and cannot make his or her own decisions. A guardian is appointed to make decisions for the incapacitated adult like housing, education, food, clothing and other activities.
While a guardian will make decisions regarding the care of an incapacitated adult, a conservator will manage an incapacitated adult's finances. This is often required when an adult becomes incapacitated and someone must access the adult's finances to pay bills, like medical bills or the mortgage.
Can A Guardianship Be Avoided?
No, but with planning you can decide who makes healthcare decisions. Typically, a guardian makes healthcare decisions for the incapacitated adult. Although a judge will choose the guardian of an incapacitated adult, anyone (over the age of 18) can pick who they want to make their healthcare decisions. A Healthcare Power of Attorney allows a person to designate who they want to make healthcare decisions in the event they become incapacitated. In addition to you (not a judge) choosing who will make your healthcare decisions, a Healthcare Power of Attorney will allow the person you designate to make healthcare decisions for you immediately. You can also nominate your healthcare agent as your guardian in your Healthcare Power of Attorney. Without a Healthcare Power of Attorney, a guardianship proceeding must be initiated to name a guardian who can make healthcare decisions. The guardianship proceeding could take months, and could cost $3,000 – $5,000 or more. However, if a person has a Healthcare Power of Attorney, it is not necessary to go to court and have a guardian appointed to make healthcare decisions.
Can A Conservatorship Be Avoided?
Yes! A conservatorship is completely avoidable with a Financial Power of Attorney. Similar to a Healthcare Power of Attorney, a Financial Power of Attorney will allow the person you designate to handle your finances if you become incapacitated. A person holding your Financial Power of Attorney can start managing your finances as soon as you become incapacitated. If a person does not have a Financial Power of Attorney, a conservatorship proceeding must be started to name a conservator. Again, this could take months and cost $3,000 – $5,000 or more. A much better option is to create a Financial Power of Attorney and avoid the conservatorship process entirely.
It is important for adults consider guardians and conservators when planning for themselves and their minor children. With proper planning, you can ensure that the very best person is making decisions for you and your minor children. If you have any questions about guardians or conservators, please feel free to call me. I don't charge for answers to quick questions.