Probate Code
Each state's laws enumerate certain duties and limitations for guardians and conservators. These laws tend to be lengthy and detailed. For a comprehensive understanding of them, including relevant exceptions and requirements, the statutes themselves should be reviewed. Additionally, state laws must be read in conjunction with the order of appointment of a guardian or conservator by the judge which may further limit the guardian's powers and responsibilities.
A guardian has the following powers and duties, except as modified by order of the court:
- To the extent that it is consistent with the terms of any order by a court of competent jurisdiction relating to detention or commitment of the ward, the guardian is entitled to custody of the person of the ward and may establish the ward's place of abode within or without this state.
- If entitled to custody of the ward the guardian shall make provision for the care, comfort and maintenance of the ward and, whenever appropriate, arrange for the ward's training and education. Without regard to custodial rights of the ward's person, the guardian shall take reasonable care of the ward's clothing, furniture, vehicles and other personal effects and commence protective proceedings if other property of the ward is in need of protection.
- A guardian may give any consents or approvals that may be necessary to enable the ward to receive medical or other professional care, counsel, treatment or service.
- If no conservator for the estate of the ward has been appointed, the guardian may: (a) Institute proceedings to compel any person under a duty to support the ward or to pay sums for the welfare of the ward to perform such person's duty. (b) Receive money and tangible property deliverable to the ward and apply the money and property for support, care and education of the ward, but the guardian may not use funds from his ward's estate for room and board the guardian or the guardian's spouse, parent or child has furnished the ward unless a charge for the service is approved by order of the court made upon notice to at least one of the next of kin of the ward, if notice is possible. He must exercise care to conserve any excess for the ward's needs.
- A guardian is required to report the condition of the ward and of the estate that has been subject to the guardian's possession or control, as required by the court or court rule.
- If a conservator has been appointed, all of the ward's estate received by the guardian in excess of those funds expended to meet current expenses for support, care and education of the ward shall be paid to the conservator for management and the guardian must account to the conservator for funds expended.
- If appropriate, a guardian shall encourage the ward to develop maximum self-reliance and independence and shall actively work toward limiting or terminating the guardianship and seeking alternatives to guardianship.
- A guardian shall find the most appropriate and least restrictive setting for the ward consistent with the ward's needs, capabilities and financial ability.
- A guardian shall make reasonable efforts to secure appropriate medical and psychological care and social services for the ward.
- A guardian shall make reasonable efforts to secure appropriate training, education and social and vocational opportunities for his ward in order to maximize the ward's potential for independence.
- In making decisions concerning his ward, a guardian shall take into consideration the ward's values and wishes.
- The guardian of an incapacitated adult who has a developmental disability shall seek services that are in the best interest of the ward, taking into consideration: (a) The ward's age. (b) The degree or type of developmental disability. (c) The presence of other disabling conditions. (d) The guardian's ability to provide the maximum opportunity to develop the ward's maximum potential, to provide a minimally structured residential program and environment for the ward and to provide a safe, secure, and dependable residential and program environment. (e) The particular desires of the individual.
In exercising powers, a conservator is to act as a fiduciary and shall observe the standard of care applicable to trustees. A conservator, without court authorization or confirmation, may invest and reinvest funds of the estate as would a trustee. Additionally, a conservator, acting reasonably in efforts to accomplish the purpose of the appointment, may act without court authorization or confirmation to:
- Collect, hold and retain assets of the estate including land in another state, until, in the conservator's judgment, disposition of the assets should be made. Assets may be retained even though they include an asset in which the conservator is personally interested.
- Receive additions to the estate.
- Continue or participate in the operation of any business or other enterprise.
- Acquire an undivided interest in an estate asset in which the conservator, in any fiduciary capacity, holds an undivided interest.
- Invest and reinvest estate assets in accordance with subsection B of this section.
- Deposit estate funds in a state or federally insured financial institution including one operated by the conservator.
- Acquire or dispose of an estate asset including land in another state for cash or on credit, at public or private sale, and manage, develop, improve, exchange, partition, change the character of or abandon an estate asset.
- Make ordinary or extraordinary repairs or alterations in buildings or other structures, demolish any improvements and raze existing or erect new party walls or buildings.
- Subdivide, develop, or dedicate land to public use, make or obtain the vacation of plats and adjust boundaries, adjust differences in valuation on exchange, partition by giving or receiving considerations and dedicate easements to public use without consideration.
- Enter for any purpose into a lease as lessor or lessee with or without an option to purchase or renew for a term within or extending beyond the term of the conservatorship.
- Enter into a lease or arrangement for exploration and removal of minerals or other natural resources or enter into a pooling or unitization agreement.
- Grant an option involving disposition of an estate asset, or take an option for the acquisition of any asset.
- Vote a security, in person or by general or limited proxy.
- Pay calls, assessments and any other sums chargeable or accruing against or on account of securities.
- Sell or exercise stock subscription or conversion rights and consent, directly or through a committee or other agent, to the reorganization, consolidation, merger, dissolution or liquidation of a corporation or other business enterprise.
- Hold a security in the name of a nominee or in other form without disclosure of the conservatorship so that title to the security may pass by delivery, but the conservator is liable for any act of the nominee in connection with the stock so held.
- Insure the assets of the estate against damage or loss, and the conservator against liability with respect to third persons.
- Borrow money to be repaid from estate assets or otherwise, advance money for the protection of the estate or the protected person, and for all expenses, losses, and liability sustained in the administration of the estate or because of the holding or ownership of any estate assets, and the conservator has a lien on the estate as against the protected person for advances so made.
- Pay or contest any claim, settle a claim by or against the estate or the protected person by compromise, arbitration, or otherwise and release, in whole or in part, any claim belonging to the estate to the extent that the claim is uncollectible except that personal injury or wrongful death claims shall be compromised pursuant to subsection D of this section.
- Pay taxes, assessments, compensation of the conservator and other expenses incurred in the collection, care, administration and protection of the estate.
- Allocate items of income or expense to either estate income or principal, as provided by law, including creation of reserves out of income for depreciation, obsolescence or amortization, or for depletion in mineral or timber properties.
- Pay any sum distributable to a protected person or dependent of the protected person, without liability to the conservator, by paying the sum to the distributee or by paying the sum for the use of the distributee either to the guardian of the distributee or, if none, to a relative or other person having custody of the person.
- Employ persons, including attorneys, auditors, investment advisors or agents, even though they are associated with the conservator, to advise or assist the conservator in the performance of administrative duties, act upon their recommendation without independent investigation and, instead of acting personally, employ one or more agents to perform any act of administration, whether or not discretionary.
- Prosecute or defend actions, claims or proceedings in any jurisdiction for the protection of estate assets and of the conservator in the performance of fiduciary duties.
- Execute and deliver all instruments which will accomplish or facilitate the exercise of the powers vested in the conservator.
Ariz. Rev. Stat. § 14-5312
Ariz. Rev. Stat. § 14-5417
Ariz. Rev. Stat. § 15-5424