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Alternatives to Guardianship and Conservatorship

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Alternatives to guardianship
Alternatives to guardianship


Imagine that the adult care home where your uncle Bill resides has told you that you need to get a guardianship. What does that mean, and what do you have to do? Are there alternatives to guardianship?

Guardianship means court involvement

When you visit a lawyer to “get” guardianship, you should know that it isn’t going to happen in a single office visit. Guardianship is a court process.

It is also expensive, since it involves court filings and hearings, appointment of an attorney to represent Bill, and surprising volumes of paper. How expensive? It depends, of course. Typically, though, the whole process might cost several thousand dollars and take at least six weeks to complete.

Guardianship, by the way, is the term we use in Arizona to describe a person appointed by the court to make personal decisions for an incapacitated person. It’s also used in cases involving minors whose parents are unavailable, but that’s a different process and story.

Is it Uncle Bill’s money you need to control? In Arizona, that means a conservatorship. That’s likely to cost a little bit more but take about the same amount of time. It would also be nice to have an alternative to conservatorship.

What are the alternatives to guardianship?

This is a good time to remind you: we are Tucson elder law attorneys. What we tell you, while brilliantly written and beautifully reasoned, is always limited to Arizona law. If neither you nor Uncle Bill are in Arizona, language and practice could be different in your state. Talk to a local lawyer.

In Arizona, you may not need a guardianship at all. Arizona law permits family members to make decisions for an incapacitated adult, even if there is no guardianship or power of attorney. There is one large limitation, though: you would not have authority to remove Uncle Bill’s feeding tube or other life-sustaining treatment without more formal authority.

The Arizona law refers to “surrogate decision makers” and sets out a priority listing. Spouses are first on the list, followed by children, parents, domestic partners and siblings. Oops — nieces and nephews aren’t on the list. Not to worry, as you should qualify as a “close friend” — the last choice on the list. Besides, your mom is Bill’s sister, and she’s on the list at a higher priority anyway.

What about a power of attorney?

If Uncle Bill can understand what he’s signing, he could give you a power of attorney. Of course, he might choose your mom, or another one of his nieces or nephews — but he could name the person who can make decisions for him.

The health care power of attorney is usually one of the best alternatives to guardianship. It is relatively inexpensive (you can even get the forms online), easy to complete and protects Bill’s choices.

The principal problem, though, is that Uncle Bill has to be competent when he signs the document. If he is now competent — even if he doesn’t need you to make decisions yet — get him to sign a power of attorney by, say, tomorrow. This is urgent. He needs to be prepared.

Who gets to decide whether Uncle Bill can sign a power of attorney? Well, the document will be notarized — so the notary public might be the ultimate arbiter of his capacity. By the way, he might be able to do it earlier (or later) in the day, or at a lawyer’s office, or on an outing — even though he might not seem completely together on a typical day.

Are there alternatives to conservatorship?

Yes, but they may not be as straightforward. Uncle Bill could sign a financial power of attorney when he signs his health care power of attorney. That way he has alternatives to guardianship and conservatorship. The forms are not as easy to find on your own, however — and you are more likely to need the help of a lawyer.

There is no “surrogate decision maker” for financial matters. Even spouses do not have the automatic right to handle one another’s financial matters. Neither do parents have any automatic authority over their children’s finances — even when the child is still a minor.

A trust can be a conservatorship alternative

If Uncle Bill had the presence of mind to have signed a trust when he was still competent, that could help a lot. As his successor trustee (he did pick you, didn’t he?) you will have authority over any assets titled to the trust. Ordinarily, that will be essentially everything he owns or has control over.

That does assume that Uncle Bill signed the trust and transferred all of his assets into the trust’s name. If not, there will be a little cleanup to be undertaken.

Where do we come in?

We really like your Uncle Bill. We also like problem-solving. And we are very eager to help with alternatives to guardianship and conservatorship.

We also are very protective of your Uncle Bill, however. We want to make sure you’re handling your authority properly, and that you understand your obligations. If you (or Bill) live in Arizona, you could make an appointment to explore whether we could work together.

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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

Famous people's wills

Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.