How to change guardians or conservators

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.

For more information, feel free to contact me directly. Paul Deloughery (paul@delougherylaw.com; www.delougherylaw.com; phone 602-443-4888)