Does every incapacitated person qualify to have a guardian appointed? Not necessarily. A valid power of attorney may finesse the need for appointment of a guardian of the person OR a conservator of the estate. Let’s look at a recent case from the courts here in Tucson.
George and Suzanne get married
Actually, the marriage of George and Suzanne was already old news. They had been together for more than thirty-five years. In 2016, Suzanne signed a durable financial power of attorney naming George as her agent. At the same time, she signed a health care power of attorney — it also named George to make personal decisions for her.
Within a couple years, Suzanne’s condition was deteriorating. She lived at home with George until early 2018, but she was not doing well. George took her to the emergency room and urgent care several times. He was strongly advised to place her in an assisted-living facility. He agreed, and she was moved to a local care facility.
Suzanne’s two adult children (from a previous marriage) filed a petition seeking appointment as their mother’s guardian and conservator. They argued that George’s behavior had not been appropriate. They did not believe his statement that he had taken Suzanne in for assessment and treatment three times. Their petition also claimed he had mismanaged her medications, and suggested that there was some nefarious purpose behind his behavior.
In a day-long trial before the probate court in Tucson, Suzanne’s sons told the judge that their step-father had a conflict of interest in handling their mother’s affairs. They pointed out that George had become romantically involved with another woman, and she had moved into George and Suzanne’s house with him. The children argued that he was exploiting Suzanne’s estate for his own benefit.
George, for his part, argued that no guardian or conservator was necessary. Yes, Suzanne was by this time incapacitated, which is a requirement before appointment of a guardian. And yes, she was unable to manage her own finances, which is required before appointment of a conservator. But since she had given George a valid power of attorney, neither guardianship nor conservatorship was necessary.
George also insisted that he had behaved appropriately. Even if there were legitimate questions about his management of her care before she was placed, the assisted living facility was taking care of her now. There was no need for appointment of a guardian to manage her personal care. As for finances: he was allowed to live in the marital home, and his romantic interests were irrelevant to Suzanne’s current care or protection.
The probate judge agreed with George. The fact that there was a valid power of attorney — actually two valid power of attorney documents — made appointment of a guardian or conservator unnecessary. There was no reason to be concerned about Suzanne’s current care or protection.
Arizona’s Court of Appeals
Suzanne’s children appealed the ruling. They argued that George had taken advantage of their mother, that he had not acted in her best interest, and that his powers of attorney should be invalidated.
The Court of Appeals upheld the probate judge’s denial of guardianship and conservatorship. They agreed with the trial court’s determination that there was no continuing risk to Suzanne, since everyone agreed that her care was now appropriate. And they noted that George, as a co-owner of the family home, could occupy it — whether or not his romantic partner lived with him.
In passing, the Court of Appeals noted that there is a priority list for who can be appointed as guardian or conservator. If the probate court had decided to appoint someone, the first person on the list would be the person nominated by Suzanne — and that would have been George. The second person on the list? George, as Suzanne’s husband.
But the appellate court never got to that point. One of the primary reasons people sign powers of attorney is to make sure that their affairs can be handled by the person they choose. They intend to avoid court proceedings, and their wishes should be respected later. If a person has a valid power of attorney, the court should feel comfortable in denying a petition for appointment of a guardian or conservator.
The Court of Appeals holding is important, and it should give comfort to people when they sign their estate planning documents. The courts will not lightly bypass the person you name in your valid power of attorney. Unfortunately, the appellate court decision is a “memorandum” decision — that means that it is not published as controlling precedent. If the same issue arises in a new case, the litigants can not point to the holding in this case to support the same principle. But the argument is still good, and should prevail: if you have a valid power of attorney, you should not be the subject of a court proceeding absent very strong evidence of wrongdoing. Guardianship and Conservatorship of Goode, April 14, 2020.