Guardianships And Conservatorships

Most persons are legally entitled to manage their own affairs when they reach the age of majority, which varies from 18 to 21 years depending on where they live and the kinds of decisions they wish to make (smoke, drink, get married, join the military, receive an inheritance). Under constitutional law, adults are entitled to make these decisions, even when these decisions are not in their best interest, until they die.

What if an individual becomes unable to make decisions? Most of us would agree that a fully competent person should be allowed to refuse life-saving medical treatment or gamble his savings away, but that intervention is necessary when that same person is mentally impaired through injury or illness and would not understand the implications of such harmful decisions.

Medical and financial powers of attorney can be effective tools of intervention. A mentally competent person can execute powers of attorney designating someone he trusts to make health care and financial decisions for him when he is temporarily or permanently unable to do so. The designated agent(s) would then have the legal power to pay bills, sell failing stock, authorize emergency surgery, and even consent to termination of life support systems.

Powers of attorney are not foolproof, however. A health care power of attorney is usually not sufficient to have a person moved out of her residence into a nursing home or psychiatric facility against her will, and banks are becoming increasingly cautious about honoring financial powers of attorney. When powers of attorney are not sufficient, but intervention is clearly necessary, then guardianship and/or conservatorship proceedings are required.

In Arizona, guardianship refers to decision-making powers relating to the person, including health care and residential placement. Conservatorship authorizes the appointee to protect and manage the income and assets of an incapacitated person. When appropriate, the petitions for guardianship and conservatorship can be merged into a single proceeding.