Powers of Attorney Guardianship and Conservatorship

Additional Family Law Matters Affecting Families, Spouses, Parents, Grandparents and Children   602-561-8107

Powers of Attorney

About Powers of Attorney:    When someone has a Power of Attorney, they may be referred to as an “Agent.” It is fairly common for a family member or some other individual to be given a Medical Power of Attorney and/or a Financial Power of Attorney over a child or an “incapacitated” adult.  Powers of Attorney (sometimes referred to as “POAs”) are also sought to protect oneself, should there ever come a time in the future when one is not able to personally take care of his or her own financial and/or medical matters. An example might be the use the Financial Power of Attorney to withdraw funds from a bank, while the person who has granted the POA (the “ward”) is in a hospital and is not able attend to their banking.

A medical power of attorney might be granted so that someone may make medical decisions for you if you were brought in to a hospital unconscious.

It is usually best to have two, separate POA documents, even if one person is the designated Agent for a financial and a medical power of attorney.  This is because there is no need for physicians to know about one’s personal (and private)  financial affairs and there is no need for bank tellers to know about one’s personal (and private) health status.

Unfortunately, there is no specific law in Arizona that compels another person or institution to honor a Power of Attorney, unless certain legal actions are put into place.  If these legal steps are not followed, family members and health care providers may take the directives into consideration, but they are not required to do so. Despite this, Powers of Attorney are useful tools, because they do provide guidance as to one’s wishes.  Family members and health care providers often do cooperate with use of decisions.

POAs are very different from Guardianship

What is a guardianship?  A guardian is someone who is designated to make most or all of someone else’s decisions.  For a guardianship to exist, there must be a “ward.”  The ward is the person in need of a guardian, usually due to what is called “incapacity.”  “Incapacity” is an inability to make sound decisions regarding one’s own life.

A guardian may be appointed by a will or other writing.  The ward may be a child or an adult.

Guardianship of a child: While Arizona Courts seek to keep children with their biological or adopted parents, sometimes a parent engages in alcohol abuse or criminal activity  and can no longer adequately care for a child.  In that case, the court may appoint a person to act as legal guardian of a child.  Often this person is an intervening family member or friend of the family.

Every child or minor must have an adult who is responsible for him or her. There may be a need for a guardian if the minor has a reasonable fear of child abuse, a parent has abandoned the child, or a parent has become terminally ill and died.

Guardianships for Children are considered temporary and typically end when the minor becomes an adult.  Guardianships for children may be voluntary or involuntary.  Voluntary guardianships are granted by the parent to the guardian, but may be revoked at any time.

Guardianships may be sought for elder members of the family who are not able to to take care of themselves.  As the “Baby Boomers” age, their children may need to care for their own children AND  their parents. This this is especially true during a recession, as “in-home” care and “assisted-living” care may be impossible for a family to afford.

When it comes to guardianships, SIRLIN LAW FIRM has the experience and know-how to provide top-notch representation. An attorney can be reached by calling 602-561-8107 or [sf_email]info@phoenixdivorcegroup.com[/sf_email].  We welcome the opportunity to assist you during the guardianship process.

More About Guardianships: How Guardianships Are Created

If a relative or anyone else suspects that a child may be subject to abuse or neglect, he or she has the right to contact Child Protective Services (“CPS”) to investigate.

If the agency determines that it is in the best interest of the child to be removed from his or her current living situation, the child can be placed in the home of a responsible relative, such as a grandparent, other relative or family friend. There are times when this starts the process for a guardianship to be put into place.

If a family member or friend is not available, the child may be placed in foster care.  SIRLIN LAW FIRM strives to keep your children safe, regardless of the circumstances.  Guardianship is one of the many ways we serve you and your family.


What is a conservatorship?

A conservatorship is very much like a guardianship, but a conservator oversees the finances of a child or an incapacitated adult.

Because a conservatorship provides for very broad power over a ward’s finances,  Arizona courts are  cautious and methodical in granting a conservatorship. A formal petition must be filed with the court, which must contain detailed documentation, including confidential personal and health information about the proposed conservatee, confidential screening information about the proposed conservator, a physician’s capacity declaration etc. In addition, a court investigator will be assigned to make a home visit and to prepare a report on the status of the proposed conservatee and the suitability of the proposed conservator. A court hearing is scheduled at which the proposed conservator must appear and in most cases the proposed conservatee must also appear. All parents, grandparents, children, brothers and sisters of the proposed conservatee must be notified in advance of the hearing so that they have an opportunity to attend and object if they wish. We can discuss whether a conservatorship is needed by you and whether you need a conservatorship of a person, his or her estate or both. If you decide to go ahead with conservatorship, we can guide you through the process and handle the required pleadings, document preparation and court appearances.