Law Offices of Douglas B. Price, P.C.

Guardianship and Conservatorship in Arizona

Wed, 17 Jun 2026 14:15:00 GMT

When an incapacitated person needs care, you can petition the court for a guardianship or a conservatorship for the incapacitated individual. The incapacity may be due to a legal disability, such as being under the age of 18, or a physical or mental disability affecting an elderly person. The difference between a guardianship and a conservatorship is that the guardian cares for the person, whereas the conservator cares for the person’s property (whether this is a house, bank account, or the proceeds of a personal injury settlement).

Guardians and conservators are fiduciaries. This means that they owe a high duty of care to the incapacitated individual and will be supervised by the court. In a conservatorship, the court will generally require either restricted (no-access) bank accounts or annual accountings to be submitted and reviewed each year.

While minors under the age of 18 are presumed not to be competent due to their young age, adults over the age of 18 are presumed to be competent until proven otherwise. The strong presumption of competence is difficult to overcome. When you seek to be a guardian or conservator of a disabled person, you will not only have the expense of paying your lawyer, but you will also have a court-appointed lawyer for the incapacitated person to pay for. In addition, you will need to pay a court-appointed doctor to examine the person and pay for a court-appointed visitor.

Guardianships and conservatorships are sometimes required but can usually be avoided with proper estate planning. This includes either a will- or trust-based plan with appropriate financial and medical directives, such as durable powers of attorney that remain valid if a person becomes disabled. Our office specializes in estate planning for Arizona families to help spare you the expense and the thousands of dollars that unprepared people often spend on court proceedings such as guardianship and conservatorship cases.

Estate planning is not just for rich people!

Stella by Starlight – a Conservatorship Story

Wed, 17 Jun 2026 14:04:00 GMT

LAW OFFICES OF DOUGLAS B. PRICE, P.C., TEMPE, AZ

I was recently contacted by a potential home seller, Stella, a 75-year-old grandmother, who was interested in selling the residence she has lived in for many years. However, Stella had an estate planning problem, one that she caused by doing her own estate planning several years ago without the benefit of counsel. This resulted in several conversations with her, the potential buyer, and the title company.

Several years ago, Stella decided to put her children and three minor (under age 18) grandchildren on the deed to her house. As the homeowner, she simply added them to a form of deed and recorded the document with the County Recorder herself. Her intent was that, should anything happen to her, the children and grandchildren would become the homeowners and would not have to go through probate, which she was very concerned to avoid. She succeeded in adding the children and grandchildren as joint tenancy owners, in effect making an irrevocable gift to them at that time.

Now that she is older, Stella has second thoughts about keeping the residence and would like to sell it and get something smaller and more affordable (with a smaller mortgage). She would also like to take advantage of today’s excellent seller’s market to realize the increased equity in her residence.

Unfortunately, the minor grandchildren cannot sign off on the sale because they are under the age of majority. This is true even when the children (over 18 and parents of the grandchildren) are willing to sign and even to give Mom “their” share of the proceeds. The title company is suggesting a conservatorship since the court-appointed conservator can sign off on the sale for the three grandchildren.

A conservatorship is a proceeding brought in probate court to protect the interests of minor children (under 18) who are legally unable to protect their own interests. The court will protect the minors’ interests and make sure those interests are “conserved.” In other words, the funds cannot be spent, given away, or otherwise “wasted.” This can be done by establishing restricted bank accounts where the money cannot be withdrawn without a court order. If more access to the funds is needed, the court may allow the conservator to withdraw funds necessary for the immediate benefit of the child (food, safety, housing, or education), but the court will apply the principle that only minimal amounts may be withdrawn, and they must be strictly accounted for by the conservator.

In Stella’s case, we can reasonably anticipate that the funds for the three minors will be placed in three restricted accounts and that, upon reaching the age of majority, each child may petition the court for the release of the funds in the appropriate restricted account. Each account will be interest-bearing and held in an FDIC-insured financial institution. No funds will be allowed for investing or any speculation where the funds are put at risk.

The conservator is a fiduciary, meaning that he or she is held to a very high standard of care in dealing with the funds of other people. Risk is to be minimized, and a conservative approach is to be taken in protecting and preserving the funds. The court may also require that the conservator be bonded and that, should any funds be misused or misappropriated, the children could collect against the bonding company (which, in turn, would seek reimbursement from the conservator).

Stella decided that, with one-half of the proceeds from her home being paid to her grandchildren’s conservatorship, she would not have enough money to purchase another house, even the smaller, less expensive one that she had hoped to get. She decided that she simply could not sell her residence under the circumstances. She had no legal remedy to the situation she herself had created.

There are several lessons to be learned from Stella’s story. The first is that if you are a person living in Mesa, Tempe, Chandler, or the East Valley, you should not do your own estate planning. The modest fees that you pay an estate planning professional will more than pay for themselves by getting the job done properly, without surprises or problems. The professional will provide for a smooth transfer of wealth between generations as you desire without unintended consequences. For example, Stella could have put the house into a trust, which would not require probate and would not needlessly encumber the title while Stella was still living. Had she done so, she would have been able to sell the residence without needing to set up a conservatorship for her minor grandchildren.

I hope that this story has been helpful to you and given you some insight into what to do—and what not to do—when considering your estate plan. We are always glad to assist with your estate planning needs to help prevent legal problems and surprises.

The Case of the Missing Trust

Wed, 17 Jun 2026 13:51:00 GMT

Our office recently had a parent of a client who had a trust written by a non-lawyer “discount” estate planning company. They properly funded the trust by placing their residence into the trust, as shown by the recorded deed. The original documents were apparently given to the parents for safekeeping.

Unfortunately, the parent passed away, and neither our client nor his siblings could locate the trust documents anywhere. After an extensive search, they contacted the non-lawyer estate planning company only to find out that the company did not keep copies of any documents it produced. So there is no trust. No plan as to who is in charge of the estate. No directions as to who gets the house, the car, or other property.

Our client will have to go to probate court to “fix” the problem of the missing trust, and the Arizona laws that apply are for people who do not have wills or trusts. This will be, of course, much more difficult and expensive than trust administration would have been.

The morals of this tale are:

A trust can be a wonderful money-saving device to help you avoid probate if done properly.
If you have a trust (or a will), make sure that your heirs know where to find it.
Use a reputable attorney (not a discount service) who will keep copies of your important legal documents in case they become lost.

Estate planning is not just for rich people.

What does “Joint Tenancy” mean?

Wed, 17 Jun 2026 13:50:00 GMT

In real estate documents, such as deeds, and other legal documents, such as vehicle titles and bank statements, we often find the term “joint tenancy” or sometimes “joint tenancy with the right of survivorship.” This is sometimes abbreviated as “JTWRS.” The term signifies a form of ownership.

In no way does this mean that you are a “tenant” or a “renter.”

What it does mean is that two or more owners of property are sharing ownership and control of the property. If there are two owners, each is an owner of an “indivisible” 50% share of the property. If it is a vehicle, each has the right to sell, especially if “or” is between their names. Arguably, if “and” is between their names, they must both agree to sell, but this may not be the case. In the case of a bank account, either could withdraw all the money or close the account. In the case of real estate, the title company would not allow one to sell without the consent of the other. However, one owner may file a court action for sale of the property and partition the proceeds among the joint owners.

The creditors of any of the joint owners may attach the property for payment of a debt, so this is a risk of joint ownership with a person who owes a debt.

For estate planning purposes, joint ownership provides, by Arizona law, for the immediate transfer of the interest of a deceased person to the survivor or survivors. This is often done by recording a certified copy of a death certificate with the county recorder in the county where the property is located. Thus, no probate is required, and the expense of probate is spared.

“Joint tenancy” should not be confused with “tenancy in common,” which is another form of ownership by two or more people. In “tenancy in common,” similar to “joint tenancy,” each owner has an indivisible percentage interest in the whole property. However, unlike “joint tenancy,” there is no automatic transfer to the surviving owner(s) upon the death of one owner. Instead, the deceased owner’s share is transferred to their heir(s) or beneficiaries under their will or trust. In other words, the surviving owner will have a new “partner” who steps into the shoes of the deceased person. This could result in a very uncomfortable situation.

One of the first court cases I handled as a young lawyer involved a property owner in an unhappy marriage. He had married late in life and added his spouse as a “joint tenant” owner of his house. Without his knowledge, she saw a lawyer who “broke” the joint tenancy, effectively converting it into a tenancy in common. Now she and her husband both owned the house, but her share would go to the heirs she specified in her will (which did not include her husband). In fact, her heirs were her relatives, whom her husband did not like. Unfortunately, the wife passed away, which is when the husband first became aware of what had happened to the ownership of “his” house. He now owned 50%, and his “surprise” new owners were his despicable relatives. He challenged the will in court, but it is very difficult to contest a will and, despite his best efforts and expert testimony, he was unable to meet the burden of proof to prove that the will was the result of an insane delusion. An appeal to the Court of Appeals upheld the findings of the trial court, so the property owner had no further legal recourse.

In conclusion, be careful how you title your property and get the legal help you need BEFORE you have a problem that could have been easily avoided by using the correct legal language. Your family will thank you for your thoughtful estate planning.

What to Do When a Power of Attorney is Abused

Wed, 17 Jun 2026 13:40:00 GMT

One of the best things you can do is prepare a durable financial or general power of attorney (POA) so that someone you trust can pay your bills and conduct your business in the event of your disability. We often help our clients in Tempe, Mesa, Chandler, Scottsdale, and San Tan Valley prepare these important documents. Without this document, you run the risk that your family will need to pay for an expensive guardianship or conservatorship. The spouse or life partner is usually the first choice to be the trusted person holding the POA. We encourage our clients to name at least one or two successors as well, which are often their children.

Assuming you have created a valid financial or general power of attorney (POA) and given it, or a copy of it, to a person you trust, what do you do if that person violates your trust and abuses the power of attorney? The person holding the power of attorney is called the “attorney in fact.” They are a fiduciary and are held to strict standards. But what happens if they use the POA to enrich themselves at your expense? What happens if they take money from your bank account for themselves or sell your property without your consent?

There are many steps to take if this happens. You should first seek the advice of legal counsel. There are both civil and criminal cases that can be made against the attorney in fact. You also need to stem the bleeding by executing a written revocation of the POA, most likely recording it with the county recorder and promptly providing it to anyone (bank, title company, auto dealer, etc.) that has been dealing with the attorney in fact. You should also take appropriate steps to notify the attorney in fact that what they have done is wrong and that you expect them to take the action necessary to undo their wrongdoing, such as returning money that does not belong to them.

The best thing that you can do is avoid giving a POA to anyone whom you suspect might abuse it. When you give the power of attorney, you are giving the attorney in fact real power to make your life better or, if abused, make your life much worse. Such power should be given carefully and with awareness.

ESTATE PLANNING IS NOT JUST FOR THE RICH!