As We Age

Rachel Fitch

Arizona had nearly a million residents sixty five or older last year, according to the Census Bureau. [1] The challenges that arise as this population journeys into the silver years is a hot topic in the media and with good reason. Baby boomers' health challenges are unique, and they are more likely than the previous generation to have a disability as they near late-life. [2] The public health crisis that this growing population of disabled adults represents receives the lion's share of media attention, while other inevitable dilemmas that go hand in hand with disability seem to reside in the shadows of our consciousness until we are personally confronted with a family member's decline. What is a family member to do when the tasks of day to day life become an insurmountable challenge to an aging loved one due to disability? Well, that depends.

With advance planning, a number of legal tools can ease the burden on family members of trying to figure out what the loved one would want them to do. For example, advance directives may convey a loved one's wishes about future health care decisions or even appoint an agent to make such decisions. A loved one's financial affairs may be handled by a trustee for property transferred into a trust, or an agent may be appointed to deal with one's finances in a durable power of attorney. These tools, however, may not be appropriate if the loved one already is mentally impaired because the tools each require testamentary capacity.

In the absence of advanced planning, a guardianship, a conservatorship, or both may be good solutions. A guardianship and a conservatorship are similar in that someone (often a family member) may be appointed by the court to make decisions for a disabled adult, known in the proceeding as the ward. A guardian makes decisions for a ward's support, care, and education much like a parent would do so for a child. For example, a guardian may decide where the ward should live. This may be particularly important if the ward should require relocation to an assisted living center. A guardian may also consent to medical treatment and other professional care services for the ward. On the other hand, a conservator is given authority over the assets and income of the ward. This may entail simple duties such as receiving income and paying bills, or it may entail more sophisticated duties such as investing estate assets or participating in the operation of the ward's business. Both a guardian and a conservator must act strictly in the ward's best interest and are required to report and account for their actions to the court.

To learn more about estate planning, guardianship or conservatorships, contact Kristi M. Morley of Owens & Perkins, Attorneys at Law


[1] U.S. Census Bureau: State and County QuickFacts. Data derived from Population Estimates, American Community Survey, Census of Population and Housing, State and County Housing Unit Estimates, County Business Patterns, Nonemployer Statistics, Economic Census, Survey of Business Owners, Building Permits. June 2013. Web.

[2] Sommegna, Paola. "Aging U.S. Baby Boomers Face More Disability." Population Reference Bureau. March 2013. Web. Accessed August 2013.

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