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Probate Court May Bypass Ward’s Choice Of Conservator

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MAY 19, 2003 VOLUME 10, NUMBER 46

When a person is no longer able to manage his or her own affairs, it may be necessary for a court to appoint a guardian (of the person) or conservator (of the estate). Who should be appointed? In most states the courts start from the presumption that family members should serve—but the highest priority usually goes to the person selected by the incapacitated person. That is not always the way things turn out, however.

There are at least three ways an incapacitated person might have input on the selection of a guardian or conservator. Once a petition is filed an attorney, a court investigator or the court itself might ask the proposed ward who he or she prefers to have act as guardian and/or conservator. In some cases the ward might have expressed a preference well before the need ever arose. And in some states, simply signing a durable power of attorney is taken as a preference by the signer for who should be appointed if the need later arises.

All three standards applied to Karla Iwen, a Minnesota woman. She had named her son Heinz Iwen as her agent in a durable power of attorney, and had specifically included a request that he be appointed if a conservatorship was ever contemplated (at the time Minnesota used the term “conservatorship” to encompass both personal and financial matters, but has since adopted the same language used in Arizona–guardianship is over the person, conservatorship over the estate). She also told the court that she wanted Heinz appointed.

The reason the issue even came before the probate court was that her other son, Thomas, had filed a petition to be appointed as her conservator. He had watched her decline while living at home, and was concerned for her safety and welfare. He did not think his brother Heinz was taking good care of their mother, and he cited the presence of mouse droppings in her bedding, a dead mouse in her fireplace, and the fact that she could not climb the stairs to the only bathroom in her home.

At the conclusion of the all-day hearing on the brothers’ competing requests to be appointed, the judge decided instead to name Karl Bushmaker, an independent professional, as guardian and conservator. Heinz appealed, arguing that his mother’s choice should be given first priority. The Minnesota Court of Appeals agreed, but nonetheless upheld the appointment of a professional.

The priority given to the ward’s preference to serve as guardian and conservator is just a priority, ruled the appellate court, and not a guarantee. When the ward’s best interests require appointment of someone else, the probate court is permitted—and indeed required—to deviate from that priority. Evidence of the living conditions at Ms. Iwen’s home supported appointment of someone else. Matter of Iwen, May 6, 3003.

Arizona law agrees with the Minnesota result. Under the guardianship and conservatorship statutes in Arizona, the probate court is specifically instructed to consider the proposed ward’s choice of guardian and conservator, whether made in a document previously signed or by current statement of the ward. The court is, however, permitted to bypass the ward’s choice if it determines that doing so would be in the ward’s best interest. It is because of the Arizona statute that powers of attorney prepared by Fleming & Curti, PLC, usually include a provision nominating the agent to serve as guardian and/or conservator if it should ever become necessary to involve the court in the process of selecting or supervising a fiduciary.

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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.