In Arizona, a guardianship is over a person and a conservatorship is over an estate. Generally, with proper planning, only a guardianship is required in special needs planning because all assets are removed from the estate of the individual living with special needs in order to qualify for government benefits, meaning there is no estate to conserve in most cases. If you believe your loved one has the capacity to make decisions for themselves, a guardianship may not be necessary as properly drafted power of attorneys and healthcare directives may sufficiently protect the individual living with special needs.
A guardianship may be appropriate if the individual with special needs lacks sufficient understanding or capacity to make or communicate reasonable decisions for themselves. In this situation, family members or other interested persons must petition the probate court for permanent appointment of guardian. In a guardianship, the person over which the guardian has been appointed is called the “ward.” A court appointed guardian has the same powers, rights and duties respecting the guardian’s ward that a parent has respecting the parent’s minor child. Typically, this includes the following powers over the individual with special needs: consenting to medical treatment, arranging education or training, applying for public assistance or social services, consenting to outpatient mental health care or treatment, determining living arrangements, and consenting to marriage. All guardians are obligated to encourage the ward to develop self-reliance and independence and must abide by all ongoing filing requirements to keep the guardianship current with the court.
A Limited Guardianship occurs when a petition for permanent appointment of guardian is filed that requests less powers over the ward than are available under the law. Additionally, a court may determine that the ward shall retain his or her right to vote or obtain or retain a driver license.
Arizona law provides that a court appointed guardian has the authority to consent to outpatient mental health care or treatment. In situations where inpatient mental health or psychiatric treatment may be necessary, a proposed guardian must specifically request this authority in the guardianship petition and prove to the probate court by clear and convincing evidence that such authority is necessary. This request must be accompanied by the opinion of a mental health expert who is either a licensed physician specializing in psychiatry or a licensed psychologist. Additionally, this authority must be requested by the guardian and approved by the probate court annually, otherwise this authority ceases on the expiration of the period specified in the prior court order, which is typically one year.