ADULT GUARDIANSHIP AND CONSERVATORSHIP Presented by Eliza Daley Read Mangum, Wall, Stoops & Warden, PLLC
What is Guardianship and Conservatorship? q A judicial proceeding in which the Court appoints a fiduciary to make decisions for the benefit of/on behalf of another adult q Limited or General q Temporary or Permanent q Emergency or Regular
What is a Fiduciary? ◦ Acts in another person’s best interests ◦ Substituted Judgment ◦ Accountable
GUARDIANSHIP
Guardianship ◦ Personal Care/Medical – Decision-making ◦ Psychiatric Placement Decision-making ◦ Protects the Person ◦ Care and Placement Decisions
Guardianship - A.R.S. § 14-5304 ◦ The court may appoint a general or limited guardian as requested if the court finds by clear and convincing evidence that: ◦ The person for whom a guardian is sought is incapacitated. ◦ The appointment is necessary to provide for the demonstrated needs of the incapacitated person. ◦ The person's needs cannot be met by less restrictive means, including the use of appropriate technological assistance.
CONSERVATORSHIP
Conservatorship ◦ Financial Decision-making ◦ Protects Assets ◦ Manages Finances
Conservatorship - A.R.S. § 14-5401 ◦ Appointment of a conservator or other protective order may be made in relation to the estate and affairs of a person if the court specifically finds on the record both of the following: ◦ (a) The person is unable to manage the person's estate and affairs effectively for reasons such as mental illness, mental deficiency, mental disorder, physical illness or disability, chronic use of drugs, chronic intoxication, confinement, detention by a foreign power or disappearance. ◦ (b) The person has property that will be wasted or dissipated unless proper management is provided, or that funds are needed for the support, care and welfare of the person or those entitled to be supported by the person and that protection is necessary or desirable to obtain or provide funds.
HOW DOES IT WORK?
Procedure ◦ Petition is Filed by an “Interested Person” ◦ Notice is Given ◦ Investigation takes Place ◦ Hearing Takes Place ◦ Court issues orders ◦ Ongoing Judicial Oversight and Transparency ◦ Annual reporting requirements
When might you need a Protective Proceeding? v An Adult is unable to make or communicate decisions for themselves § Dementia § Head Injury § Developmental Delays § Serious Illness § Physical Impairment § Serious Mental Illness
WHAT RIGHTS AND PROTECTIONS ARE THERE FOR A POTENTIAL PROTECTED PERSON?
Continuum of protections/supports ◦ Least Restrictive Environment ◦ As much independence and decision-making retained as possible ◦ Technological assistance ◦ Revisit needs over time
How Can People Plan Ahead ◦ Arizona Law allows adults to express their preference for a guardian and conservator in a Power of Attorney ◦ Some procedural protections are in place by law: ◦ Due Process (Notice and Hearing) ◦ Right to Legal Counsel ◦ Medical Evaluation ◦ Court Investigator Report
What alternatives exist? Ø Powers of attorney Ø Supportive environments Ø Technology
Sometimes it is necessary despite advance planning ◦ Person revokes powers of attorney ◦ Power of Attorney fails for some reason ◦ Agent is unavailable ◦ Agent is harming principal ◦ Person has no insight into vulnerability or needs ◦ Person is in medical, financial or physical danger
WHAT IF I AM WORRIED ABOUT AN ADULT?
Steps you can take if you think an adult may be incapacitated or subject to exploitation ◦ Report to: ◦ Adult Protective Services ◦ Law Enforcement ◦ GC may be an option ◦ Triggers investigation of situation and needs
The person most likely to exploit a vulnerable adult… Ø Close family member Ø Trusted friend Ø Agent under power of attorney Ø If you are concerned, take that seriously!!
QUESTIONS?
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