Here is the quandry a “protected person” (a person subject to a conservatorship) can find himself. Sometimes the conservator turns out to be a poor manager of money (or dishonest). Or, perhaps the person appointed as guardian is not looking out for the incapacitated person’s best interest. In that case, if a conservatorship is in place, the person subject to the conservatorship (or guardianship) finds himself in a strange position. The Arizona statute provides lots of due process protections during the process of imposing a guardianship or conservatorship. For instance, the court will appoint an attorney for the purportedly protected person or incapacitated person during the court proceeding to determine whether a guardianship or conservatorship is needed.
However, once a conservator is appointed, the protected person or ward is technically no longer able to prosecute a legal proceeding on his or her behalf. The conservator is now the person who is responsible for bringing court actions. A.R.S. § 14-5424 (C)(24). The problem is that if the conservator is dishonest, lazy or a poor manager, then you have a “fox guarding the chicken coop” situation.
Nevertheless, an attorney can still bring an action on behalf of the protected person/ward, because the court has inherent authority to protect the rights of a protected person or ward. Cubbison v. Cubbison (1935) 45 Ariz. 14, 40 P.2d 86.
Also, the statute provides that “With respect to persons having equal priority, the court shall select the [a conservator] it determines is best qualified to serve. The court, for good cause, may pass over a person having priority and appoint a person having a lower priority or no priority.” A.R.S. § 14-5410 (B). There is a similar provision for guardians.
This is sufficient authority to petition the court to remove the current guardian or conservator and have a replacement appointed.
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Paul E. Deloughery is the founding partner at the Scottsdale law firm of Deloughery & Ruotolo, P.C. You may contact Paul at 602-443-4888 or by email at paul@delougherylaw.com. For more information, go to www.delougherylaw.com.
Disclaimer: The information contained in this article is made available for general informational purposes only, and is not intended to constitute specific legal advice or to be a substitute for advice from qualified counsel. For that reason, you should not act or refrain from acting based on any information in this article without first obtaining advice from professional counsel qualified in the applicable subject matter and jurisdictions.
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Jennifer Wong
