Articles Posted in Guardianship/Conservatorship

Undue influence occurs when a dominant person replaces their will for the will of a dependent and vulnerable person for their own personal gain. Money is usually the motive behind this type of abuse. And most commonly this type of abuse occurs with the elderly and disabled. This is because the elderly and disabled are more susceptible and vulnerable than others. A lot of times they rely heavily on others for daily assistance and are more trusting in nature. The relationship is more than just persuasion, it is a psychological control and the relationship holds many similarities to domestic violence. One of the key factors in gaining this type of control is by isolating the weaker person.

Identifying this abuse can be difficult, below are several examples of how this abuse may appear.

  1. The victim takes actions that are contrary to his or her previous habits, values or beliefs. This could be signing documents, changing estate plans, and the like.

Under a previous blog article titled “New Rules Coming for Fiduciaries” we noted the requirement of a fiduciary to give advance notice of a change in compensation. That rule became effective on January 1, 2012. This posting will flesh that requirement out a little more.

Under A.R.S. 14-5109 attorneys, fiduciaries, and other professionals involved in a guardianship/conservatorship case must give notice of intent to seek fees against a Ward’s estate when first appearing in the case. This notice must be filed with the court and a copy provided to all interested parties. There is no standardized form or format for giving this notice. However, the notice should give at least a general explanation of the compensation arrangement and how the compensation will be computed. Additionally, changes in a professional’s compensation schedule must be given at least thirty days in advance of such change. The statute does not specifically require it, but the best practice would be to also provide such notice in writing.

Claims for compensation (i.e. invoices) from attorneys and guardians ad litem appearing in a case must be submitted to the fiduciary handling the Ward’s estate within four months of incurring those costs and must be in writing. See A.R.S. 14-5110. If these claims for compensation are not provided within this four month time frame they are permanently waived.

On February 1, 2012, new rules will go into effect under the Arizona Rules of Probate Procedure which govern issues within the purview of the probate court. Most of these changes are directed at the rules governing guardianships and conservatorships, although trusts and decedent’s estates are implicated as well. A sampling of some of the rule changes include the following:

Rule 10.1 requires fiduciaries to exercise prudent management of costs including protecting against incurring costs that exceed probable benefits to the ward, protected person, estate or trust. Also requires fiduciaries, their counsel, the ward/protected person’s counsel or court-appointed counsel to timely disclose to the Court their belief that projected costs of complying with a court order may exceed probable benefits.

Rule 18 permits a party to file Notice that another party has made a repetitive filing for the same or similar relief within last twelve (12) months. Filing such a Notice stays the deadline for response or objection to the alleged repetitive filing until further order by court, but must be filed prior to the deadline for filing a response or objection to the alleged repetitive filing.

The Probate Court often had difficulty putting an adult guardianship or conservatorship in place for a person in need of protection who was still a minor but was about to become an adult. In most cases, the petitions seeking the guardianship or conservatorship for an adult were filed prior to the child’s 18th birthday in order to have protective provisions in place immediately when the child reached adulthood. However, this created a jurisdictional problem for the court because the child was not yet an adult when the petition was filed. The court’s response to these petitions was varied: some were dismissed, other were not acted upon until after the child’s 18th birthday. This inconsistency led to SB1081 which created the new standby guardianship and conservatorship via A.R.S. §§14-5301.03 and 14-5301.04.

Under these new statutes a petition for a minor who needs protection can be filed when the minor reaches 17.5 years old. If the child is found in need of the guardianship or conservatorship when he/she becomes an adult, the court will enter the order granting the protection but which does not become effective until the person’s 18th birthday. These new laws permit a better continuum of care for special needs children who are transitioning into adulthood. If you are the parent of a special needs teenager approaching adulthood who may need a guardian or conservator, you should speak with a knowledgeable attorney about this new option.

Elder abuse can take many forms ranging from self-neglect arising from a vulnerable adult’s inability to care for his/her own needs, to financial exploitation, neglect, physical or even sexual abuse by third parties. Although Adult Protective Services (“APS”) investigated over six thousand reports last year, it is still thought this represents only the tip of the iceberg and that most elder abuse remains hidden and unreported.

Recently, the iconic actor Mickey Rooney helped raise awareness on elder abuse concerns when he testified to a Senate committed about how he was personally victimized by a family member. Click here to read more about this.

If you suspect an elderly person is being abused, contact APS immediately. APS partners with a variety of agencies to provide a comprehensive set of services to help the vulnerable adults live as independently as possible.

A Personal Representative of an estate, a Trustee of a trust, and a Conservator for a protected person (also referred to as a Ward)are all fiduciaries who owe duties to the people whose assets are being managed by them. These fiduciary obligations require that the fiduciary act diligently, fairly, and keep detailed records. It is a high standard of care that all too often is not lived up to.

So, what can you do if a Personal Representative, Trustee or Conservator is not doing his/her job?

First and foremost, communicate with them and keep records of your communication. If you have a fiduciary who is not responding, you need to document that lack of communication (and all other facts about the estate/trust). Among litigators, if it often said that “if it can’t be read, it wasn’t said” – an adage which aptly points to the reliability of written documentation versus relying strictly on memory – not to mention the propensity for the opposing party to conveniently forget or alter important details. Make sure you document everything in writing.

There have been a lot of articles in the newspaper about reform in the Arizona probate courts regarding guardianships and conservatorships. You may have read some of them. Those articles incited enough reaction that they got the Arizona legislature’s attention with the result that, on April 29, 2011, Governor Brewer signed SB1499 into law mandating substantial changes to the statutes regulating these kinds of protective proceedings. SB1499 (also known as the Probate Proceedings Omnibus Act) becomes effective on January 1, 2012.

Some of the key changes are as follows:

  • Requirements that fiduciaries protect against costs that exceed probable benefit to the ward/beneficiary/heir/devisee.