What is the distinction between an Agent under a Power of Attorney, Guardianship and Conservatorship?
Guardianship and Conservatorship
In Arizona, if a person (known as the “ward”) is no longer able to care for herself or himself, a legal proceeding known as a “guardianship” can be initiated in Arizona Superior Court. A petition to begin the proceeding can be filed by a person who has an interest in protecting the ward. The State can also initiate the proceeding. The court will hear evidence and then be responsible for selecting and appointing a guardian over the ward’s person. A similar process by which someone is appointed to care for the ward’s property is known as a “conservatorship.” Once a guardian and conservator are appointed, they are required to report to the court on an annual basis. There are also many other state-imposed requirements which can make guardianship and conservatorship proceedings extremely cumbersome, time consuming and expensive.
Medical and Financial Powers of Attorney
While guardianships and conservatorships may be necessary under certain circumstances, they can be largely avoided with a well-drafted estate plan. Most estate plans include both financial and health-care powers of attorney. Under these important documents, an individual, known as the principal, appoints another person, known as the agent, to make financial or medical decisions on the principal’s behalf. This appointment can be immediate or “springing. “ Under a springing power, the appointment is not effective unless the agent can demonstrate that the principal is no longer able to make decisions for himself or herself or is otherwise incapacitated. Generally, no outside oversight, annual reporting or detailed accountings are required. Additionally, if a guardianship or conservatorship does become necessary, in identifying the guardian and conservator a court will give considerable weight to the person appointed as agent under a power of attorney since the appointment reflects the principal’s intent and desires.
In some cases, conflicts over what is best for the principal may arise between an agent appointed under a power of attorney and another person appointed as a guardian or conservator. A guardian who disagrees with an agent’s decisions or actions can petition the court to have the agent removed. The petition will be granted if the guardian can prove significant grounds for the removal. These conflicts are almost always accompanied by a great deal of stress, drama and expense. This is why it’s very important to carefully select the person or persons who will act as your agent under a medical or financial power.
This blog should be used for informational purposes only. It does not create an attorney-client relationship with any reader and should not be construed as legal advice. If you need legal advice regarding Guardianship and Conservatorship, or any other estate planning matters, please feel free to contact Stephen L. West at 480.461.5341,or Curtis M. Chipman at 480.461.5329. You can also log on to udallshumway.com, or contact an attorney in your area. Udall Shumway PLC is located in Mesa, Arizona and is a full service law firm. We assist Individuals, families, businesses, schools and municipalities in Mesa and the Phoenix/East Valley.