Experienced Arizona Ancillary Probate and Trust Attorney Arizona Ancillary Probate Lawyer Matthew L. Howell Attorney at Law
Arizona Real Estate Trust Attorney
Arizona Ancillary Probate Specialist

Frequently Asked Questions And Answers for:

Guardianship/Conservatorship
Appointment and Administration

  1. What is Guardianship/Conservatorship?

    a. Guardianship--A court appoints a guardian to make personal welfare decisions for any "legally incapacitated person" who resides or is present in Arizona, and for whom personal welfare decisions cannot already legally be made. A minor, namely, an unmarried person under the age 18, needs appointment of a guardian if no natural or adoptive parent is available or capable of providing care. Parental disability may stem from death, disappearance, confinement, physical or mental incapacity, or legal termination of parental rights. For adults, incapacity results from physical and/or mental disability whatever the cause.

    b. Conservatorship--A court appoints a conservator to manage the property and estate of a minor or legally incapacitated adult who resides or has property in Arizona and who has no other legally effective means of protecting that property. Protection applies to both the incapacitated person and his or her dependents. In Arizona, the term "protective proceeding" describes both the court appointment of a conservator, where ongoing financial management is contemplated, as well as court approval of short term, often single-action, "protective orders".

  2. When is a Guardian Appointed?

    a. Guardian is a minor--The court may appoint a guardian for an unmarried minor (under age 18) if all parental rights of custody have been terminated or suspended by circumstances (death, incapacity, disappearance, detention, incarceration) or prior court order.

    b. Guardian for an adult--The court may appoint a guardian for an adult if clear and convincing evidence shows that person to be incapacitated (namely, one impaired by mental illness, deficiency, disorder, or physical illness, disability, drug or alcohol abuse, and where appointment is necessary to provide for that person's demonstrated needs.

  3. When is a Conservator Appointed? -- A conservator is appointed when it is established that a person cannot effectively manage or apply his estate to necessary ends, either because he lacks the ability, or is otherwise inconvenienced, or because he is a minor, and to secure administration of his estate.

    Guardianship Conservatorship

  4. How us a Guardian Appointed?

    a. Guardian for a minor--There are two different methods of guardianship appointment for a minor:

    i. Testamentary appointment--a parent may appoint by last will and testament a guardian for his or her unmarried minor; both parents must either be dead or the surviving parent must be "adjudged incapacitated"--presumably including legal termination of the survivor's parental rights, and incapacity due to disappearance, confinement, detention, etc.; the nominee's appointment is effective upon filing both; (a) the nominating will for probate and (b) the nominee's formal acceptance, written-notice of which must be given to the minor and the minor's care giver or his nearest adult relation; note, the minor or other interested person may object to the testamentary appointment forcing the court to make a determination;

    ii. Court appointment--Where the testamentary appointment is not available, or objected to, any person interested in the minor's welfare may bring a petition to appoint a guardian, but a person unrelated to the minor must br a certified professional fiduciary; the applicant must file a statement disclosing that there is no conflict of interest; thereafter, the court, after notice to all interested parties and hearing, will appoint a guardian as is in the best interest of the minor ward; after appointment, the guardian must sign a formal acceptance and receive letters of guardianship; the court may impose restrictions on the guardian's authority.

    b. Guardian for an adult--There are two different methods of guardianship appointment for an adult:

    i. Testamentary appointment--A parent or spouse may appoint by last will and testament a guardian for his or her incapacitated adult child or spouse;

    (a) Parental nomination--A parent of the ward may appoint by last will and testament a guardian for his or her incapacitated adult child; at least one of the ward's parent's must be deceased and the other of them adjudged incapacitated; if both parents are dead the nomination of the later deceasing parent has priority unless that will is denied in formal probate proceedings;

    (b) Spousal nomination--A spouse of the ward may appoint by last will and testament a guardian for his or her incapacitated spouse; the spousal nomination has priority over parental nomination unless spousal nomination us denied in formal probate proceedings.

    The nominee's appointment is effective upon filing both (a) the nominating will for probate and (b) the nominee's formal acceptance, written notice of which must be given to the adult and the adult's care giver or his nearest adult relation; note, the adult or other interested person may object to the testamentary appointment forcing the court to make a determination.

    ii. Court appointment--Where the testamentary appointment is not available, or objected to, the alleged incapacitated person or any person interested in his welfare may petition for a guardianship appointment; the general priority for appointment is (1) the adult's (former) domiciliary appointed guardian or conservator; (2) the adult's nominee; (3) the nominee in the adult's durable power of attorney, (4) the adult's spouse; (5) the adult's adult child; (6) the adult's parent; (7) any adult relative with whom the adult has resided for more than 6 months prior to the filing of the petition, or (8) a private fiduciary (i.e. professional guardian or conservator who are Arizona registered and certified); the petition must contain certain information regarding the adult and the nature of the incapacity as well as the appointee's qualifications; the court then sets a hearing date and appoints an attorney to represent the adult and a court investigator who interviews the alleged incapacitated person and visits the present (and any projected future) abode thereof and who files a written report to the court; the court also appoints a physician, psychologist or a registered nurse to examine the alleged incapacitated person and file a written report to the court; the appointee must file a disclosure statement; after court appointment the guardian must file a formal acceptance before receiving his formal letters of guardianship.

  5. How is a conservator appointed?

    a. Minor conservatorships--Appointment of a conservator for a minor begins by filing a petition alleging that the minor owns property or may have business that may be jeopardized or prevented by minority or that funds are needed for the minor's support and education; upon filing of a petition the court will set a hearing date and after notice and hearing the court appoints the conservator with surety bond equal to the fair market value of assets under administration plus one year's annual income; bond may be waived if (or to the extent) the assets are placed in court restricted accounts, namely, those that cannot be accessed by the conservator without prior court order; on appointment and acceptance the conservator may then acquire and manage the estate;

    b. Adult conservatorships--Appointment of a conservator for an adult begins by any interested person filing a petition alleging that the adult is mentally or physically incapacitated, disappeared, detained or incarcerated and that the adult has property which will be wasted or dissipated unless proper management is provided, or that funds are needed for the support, care and welfare of the adult or his or her dependents and that protection is necessary or desirable to obtain or provide funds; the general priority for appointment is (1) the adult's (former) domiciliary appointed guardian or conservator; (2) the adult's nominee; (3) the nominee in the adult's durable power of attorney, (4) the adult's spouse; (5) the adult's adult child; (6) the adult's parent; (7) any adult relative with whom the adult has resided for more than 6 months prior to the filing of the petition, or (8) a private fiduciary,(i.e. professional guardian, conservator who are Arizona registered and certified); the petition must contain certain information regarding the adult and the nature of the incapacity as well as the appointee's qualifications; the court then sets a hearing date and appoints an attorney to represent the adult and a court investigator to interview the alleged incapacitated person and visits the present (and any as well as projected future) abode thereof as well as a physician, or registered nurse to examine the alleged incapacitated person and to file a written report to the court; the appointee must file a disclosure statement; notice of the hearing is given to all interested persons; the appointee must file a surety bond equal to the fair market value of assets under administration plus one year's annual income; bond maybe waived if (or to the extent) the assets are placed in court restricted accounts, namely, those that cannot be accessed by the conservator without prior court order; on appointment, and acceptance the court will issue letters of conservatorship who may then acquire and manage the estate.

  6. What are the Guardian's or Conservator's responsibilities after appointment?

    a. Adult Guardianship--The guardian for an adult is required to file an annual report of guardian to the court advising it of the adult's condition, etc.

    b. Conservatorship--The conservator of either a minor or adult must file, and have judicially approved, annual accountings of receipts and disbursements from the estate and adjust the surety bond to cover the value of the conservatorship estate plus the annual income excluding, however, the value of any assets (and income there from) that are placed in court restricted accounts, namely, those that the conservator cannot reach without prior court approval; the conservator must also file annually an estate management plan.

  7. How is the Guardianship or Conservatorship terminated?

    a. Guardianship--When the minor becomes an adult, or when the adult dies, or no longer needs a guardian, then a petition is filed with the court to terminate the guardianship and discharge the guardian;

    b. Conservatorship--When the minor becomes an adult, or when the adult dies, or no longer needs a conservator, then a final accounting is filed along with a petition to terminate the conservatorship and to discharge the conservator.


FAQs Local Probate

Estate Planning

Wills

Durable Powers of Attorney

Probate Estate Administration

Guardianship-Conservatorship

Living Will Declaration

Living Trusts and Estate Plan

Marital Property Agreements

Trust Estate Administration


FAQs Local Probate | FAQs Ancillary Probate | About Us | Contact Us
Legal Services AZ Residents | Legal Services non-AZ Residents