03 Apr Can the Same Person You Appoint As Trustee Also Be a Guardian?
If you want to, the same person you name as guardian for your minor children can serve a dual role as trustee. However, this decision takes some careful consideration. Having one individual serve both roles isn’t always the best idea. It can be complicated, impractical, and even lead to conflicts of interest.
To better understand the potential conflicts, let’s take a look at a fictional scenario.
EXAMPLE: The Thompson Family
Jane, a single mother, passed away unexpectedly. Before her death, Jane had taken steps to ensure her daughter’s future by setting up a trust fund for Emily, her young daughter. She named her brother, David, as the trustee of the fund. As part of her planning, Jane also named David as Emily’s legal guardian. In addition, David was listed as a beneficiary of Jane’s estate.
However, this arrangement led to conflicts of interest. As the trustee of Emily’s trust fund, David was responsible for managing and distributing the assets designated for his niece’s benefit. At the same time, as Emily’s guardian, David had to make decisions regarding her day-to-day care and long-term wellbeing.
Trustee vs. Guardian
The conflict arose because David’s personal interests in the estate directly influenced how much Emily would receive from the trust fund. For example, David was in a position to decide how to invest the trust’s assets. While he had a responsibility to act in Emily’s best interests, some of his decisions seemed to prioritize his own financial goals. One notable instance was when David chose to invest a portion of the trust fund in a business venture that he personally benefited from. Though the investment had the potential to increase in value, it also carried significant risks, raising concerns about whether it was truly in Emily’s best interest.
As David’s role as both guardian and trustee intersected, family members began to express concerns. They worried that David’s dual responsibilities—managing Emily’s trust and caring for her—might lead him to make decisions that served his own financial interests rather than protecting and growing Emily’s inheritance according to her late mother’s wishes.
This situation put everyone in a delicate position, as the family struggled to ensure that Jane’s legacy for Emily was honored without compromising the child’s future financial security.
Should a Trustee and Guardian Be the Same Person?
This is entirely up to you. It will depend on your personal circumstances, preferences, and reliability and expertise of the people involved. It’s not unheard of for people to name the same individual as both guardian and trustee in their will.
A guardian is responsible for the physical care and wellbeing of your children, while a trustee manages their financial assets, often until they reach adulthood. While it may seem convenient to appoint the same person for both roles, as we’ve seen in our example above, it can lead to potential conflicts of interest or concentration of power in one individual’s hands.
If you have young children, you should consider the benefits of appointing separate people for each role. This way the guardian can focus on the child. That way your child’s daily needs, emotional health, education, and family life will come first.
The trustee can focus on managing finances without the burden of caregiving. Separating the roles this way can help prevent conflicts, because it allows for each person to maintain a clear focus and adhere to the wishes of the deceased.
What power does a guardian have in the state of Arizona?
A guardian is someone who is responsible for a minor or an incapacitated adult. If that person is an adult, they legally have the same rights and powers as the person they’re in charge of. If it’s a child, they’re responsible for their regular care. This means they can give approval for medical care, professional counsel, treatment, and personal services. If the guardian is entitled “custody of the ward” they will need to provide living arrangements, care, comfort, maintenance, education, personal effects (like clothing, furniture, vehicles), as well as protection.
A guardian is not the same as a conservatorship. However, someone may act in both roles as guardian and conservator, according to Arizona law. A conservatorship is where one person is in charge of the assets of another. It is granted by the court when an individual is unable to manage their own finances or personal affairs due to incapacity, such as from illness or disability.
Unlike a guardianship, which typically applies to minor children, a conservatorship is often used for adults who need assistance with decision-making. A conservator is appointed to handle the person’s financial or personal matters, ensuring their well-being is maintained. It can be temporary or permanent, depending on the individual’s condition.
A guardian and a conservator may both be needed in situations where a child needs personal care and financial management. For example, a guardian can make decisions about the child’s healthcare, living arrangements, and general well-being. Meanwhile, a conservator may be appointed to manage the person’s finances, property, and legal affairs. This dual arrangement ensures that both their personal and financial needs are properly managed.
Who can act as a guardian?
In Arizona, the law says any adult you name in your will may act as a guardian. However, there are some requirements and exceptions.
Qualified people who can serve as a guardian for a minor child include:
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- Parents or Step-Parents: If both parents are deceased or unable to care for the child, the court will appoint a guardian.
- Relatives: The court will give preference to family members with close relationships to the child (grandparents, aunts, uncles, or siblings).
- Non-Relatives: A close family friend or another individual may also be appointed. The court will carefully consider their ability to care for the child as well as their relationship with the minor.
People who won’t qualify are the following:
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- Convicted Felons: Individuals who have been convicted of certain crimes, particularly those involving harm to children, are disqualified from serving as a guardian.
- Abusers: Anyone with a history of child abuse or neglect, whether substantiated or not, will typically be excluded from guardianship.
- Individuals with Substance Abuse Issues: If an individual has ongoing substance abuse problems or is incapable of managing the responsibilities of guardianship, they may be disqualified.
- Incapacitated Persons: Those who are mentally or physically incapable of caring for a child will not be suitable guardians. For example, a grandparent with Alzheimer’s would be disqualified, because they will not be able to provide adequate care.
Estate Planning Attorney in Chandler, AZ
Estate planning is a crucial part of parenting, especially when it comes to naming guardians and managing your assets. If you have not yet written your will and appointed a guardian for your minor children, don’t delay! Having an estate plan in place will give you peace of mind. Knowing that your little ones will be well cared for is essential if anything should ever happen to you.
An experienced attorney at Phelps LaClair can help you navigate crucial decisions. Choose a trustee or a guardian with confidence. From avoiding probate fees to preventing conflicts within the family, we can help you with every aspect of estate planning.
Secure your family’s future with expert guidance on guardianship, trust administration, and more. Don’t leave your family’s well-being to chance—let us help you protect what matters most. Contact us today to schedule a free consultation.
Images used under creative commons license – commercial use (03.06.2025). Photo by Benjamin Manley on Unsplash.