Estate Planning and Common Needs.
A guardian is a person, or entity, appointed by the court to provide care for an incapacitated adult who can no longer make personal decisions on their own. Generally, an individual becomes incapacitated when they can no longer make reasonable decisions with regards to their own best interests due to a mental or physical condition. The procedure for appointing a guardian of an incapacitated adult is governed by Arizona Revised Statute § 14-5303. The petition must include basic information about who is to be appointed guardian and why appointing a guardian is needed. In addition, a proposed guardian must provide personal information to the court such as any felony convictions or prior times the individual has acted as a guardian.
A guardian can be an individual, such as a child or spouse, although there is no requirement the guardian has to be a family member. Often times however the ward will feel more comfortable letting someone they already know and trust make decisions for them. For these reasons planning for a guardian is an important step in drafting your estate planning documents as priority can be given to a person nominated by a power of attorney over some others that may be appointed. A guardian can also be an entity such as a private fiduciary. A private fiduciary is a person or business that is licensed to act as a guardian and also receives payment to do so. If the ward has limited funds or no one to act as guardian the court can appoint the public fiduciary.
A guardianship occurs when the court appoints a guardian to make personal decisions for a minor child. The guardian is the person who makes the decisions and the child is known as the “ward”. Generally, the guardian of a minor is appointed in two ways. A guardian for a minor can be appointed by a will of a deceased parent or guardian, pursuant to Arizona Revised Statute § 14-5202; or a guardian can be appointed by the court, on petition, pursuant to Arizona Revised Statue § 14-5207.
A guardian can be an individual, or it can be an entity such as a private fiduciary. Although, public fiduciary’s typically do not act as guardians to minors. The guardian of a minor is generally determined by a person whose appointment will be in the best interest of the minor.
Apart from a guardian being appointed by a will, any interested individual can apply to be a guardian for a minor by filing a petition with the court. The petition must give notice to other interested parties then the court will set a date for a hearing on the petition. Generally, notice must be given to any minor who is over fourteen years of age, any person who has had principal care and custody of the minor for the sixty days prior to filing the petition, and to any living parent of the minor. If, after notice and the hearing, the court determines the welfare and best interests of the minor will be served by the requested appointment, the court will appoint the individual who filed the petition.
Generally, a conservatorship is attained by filing a petition with the Superior Court following Arizona Revised Statute § 14-5404. The Purpose of a conservatorship is to appoint someone (this could be a person or a company) to make financial decision and manage financial matters for a person who is no longer able to make those decisions on their own. In legal terms, this is a person who has become incapacitated. Most commonly, a child applies to be conservator of a parent’s affairs, however, anyone who would be negatively impacted by financial mismanagement of a person’s estate can apply for a conservatorship, it does not need to be a relative or family member.
In order to be appointed as conservator, the person asking the court to appoint them must provide personal information to the court. Some of the information to be provided includes any criminal history that person may have, if that person has acted as a conservator before and what priority does the person applying have to be appointed, in addition to other information. In addition, the person applying must provide information about the incapacitated person, their assets, and why they need to be protected. A conservator may be appointed on a temporary or permanent basis, and the nature of the conservatorship is fully set forth in the letters of appointment.
If a conservator is appointed, they have the responsibility to the protected person of a fiduciary relationship. This means the conservator must always act prudently in dealing with the financial matters and property of a protected person. In addition to this standard of care, a conservator has the duty to keep accurate and thorough records of all the financial dealings and information on behalf of the protected person.
Acting as a conservator for a minor is a difficult but important task. A conservator must use the assets of the minor only for the minor’s support, care, education or benefit and never for the benefit of the conservator. If a conservator is misusing a minor’s funds in some cases they can be exposed to potential personal liability or court sanctions.
The parents or guardian of a minor child may petition the court for a conservatorship for a minor under several circumstances. Those circumstances are set forth in Arizona Revised Statute § 14-5401. While this list is not exhaustive, the general circumstances are as follows:
– The minor may own property that needs management, or is otherwise uncollectable due to the minority.
– The minor may own money or funds that need management, or are otherwise uncollectable due to the minority – The minor may have business or affairs that may be put at risk or wasted due to the minority.
– The minor may have funds set up for the minor’s support or education that need management and protection.
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