Elder Law
FAQs

What is adult guardianship, and when is it necessary?

An adult guardianship designates a person to make decisions on behalf of an adult in need. It is a serious undertaking and often the last resort for elderly or disabled adults who cannot manage their own needs. Adult guardianships are frequently necessary for people living with Alzheimer's disease and other forms of dementia. Guardians must always make decisions in the best interest of their wards.

A guardian is designated only after a doctor determines that a person can no longer manage their day-to-day activities. The guardian functions in a parent-like role for the adult in need, and is responsible for making decisions about matters such as where that adult lives, whether they can drive, and what doctors and specialists they see. The guardian also is responsible for determining what kind of help the adult in need requires during their day-to-day activities.

How do you establish a guardianship?

The first step is an evaluation by a physician. If the physician finds that the adult in need has a diagnosis or condition that requires a guardianship, we can help you petition the court to become their guardian. The court will appoint an attorney to represent the adult in need and designate a court investigator. The investigator (often a social worker) will talk to everyone involved and issue an opinion regarding the necessity of a guardian and what type of guardianship is needed. Once the guardianship is in place, your attorney's costs and the court-appointed attorney’s fees will be paid by the adult in need.

Does guardianship always take away all of a person's decision-making rights?

Not always. For people who can still perform some of the activities of daily living, the law requires that the court consider putting a limited guardianship in place to take charge of only those decisions and activities that the adult in need truly can't handle.

For example, a person may not be able to manage meds or live independently, but still takes pleasure in balancing her checkbook. In a case like that, to preserve as much quality of life as possible, she could retain control over an allowance and checkbook to manage on her own.

How do I get an emergency guardianship?

If there is an urgent need to put a guardian in place, you may petition for emergency guardianship. The judge will look at the petition's merits and may grant a temporary emergency guardianship, then set a hearing to take place before the emergency orders expire. If the emergency guardianship is not granted, the petitioner still has the option to go through the normal guardianship petition process.

What is a conservatorship? How is it different from a guardianship?

While a guardian looks after a person and their best interests in their day-to-day life, a conservator does the same for the person's finances. Like a guardianship, a conservatorship is issued by the court. A careful accounting of the conservator's financial decisions must be reported to the court on a yearly basis. Often if you are designated as a conservator, you also will be given priority to be a guardian.

What is the difference between a power of attorney and a conservatorship?

First the similarities: both financial powers of attorney and conservatorships allow you to manage the financial affairs on behalf of another person, and both demand a high degree of fiduciary commitment. With a power of attorney, however, the person whose affairs will be managed can designate a power of attorney to someone of their choosing, thus avoiding the court altogether. While a person must be competent to establish a power of attorney, they can revoke a power of attorney regardless of their mental status. In the latter case, you may then need to pursue a conservatorship on their behalf.

I have a relative who was scammed out of a lot of money. Can you help?

Yes. I am experienced in civil litigation cases involving elderly clients.

Can I avoid probate and its associated costs?

Yes. While many people believe that you must have a trust in place to avoid probate, beneficiary designations often can work in place of a trust. You can designate beneficiaries for annuity contracts, bank accounts, investments, real estate and automobiles. To pass real estate and automobiles to your beneficiaries outside of probate, you will need to file a beneficiary deed with Yavapai County (you can get the form at the County office) and a beneficiary designation with the Arizona DMV.