Arizona Supreme Court Committee on Improving Judicial Oversight and Processing of Probate Court Matters Final Report to the Arizona Judicial Council June 2011 Committee on Improving Judicial Oversight and Processing of Probate Court Matters June 2011 Chair: Hon. Ann A. Scott Timmer, Chief Judge Arizona Court of Appeals, Division One Diana Clarke Probate Court Counsel Superior Court in Maricopa County Hon. Rosa Mroz Presiding Judge, Probate Division Superior Court in Maricopa County Hon. Julia Connors Commissioner, Probate Division, Superior Court in Pima County Hon. Robert D. Myers (Retired) Public Attorney Member Hon. Robert Carter Olson Presiding Judge Superior Court in Pinal County Faustina Dannenfelser Program Administrator for Adult Protective Services Thomas L. Davis Public Member Jay M. Polk Attorney State Bar Representative Hon. Gary Donahoe Judge Superior Court in Maricopa County Catherine Robbins Mohave County Public Fiduciary Denise Lundin-Newton (Retired) Representative Superior Court Clerks Association Mark Salem Public Member Hon. Charles Harrington Presiding Judge, Probate Division Superior Court in Pima County Jacob Schmitt Administrator Child Welfare Program Pamela Johnston Licensed Fiduciary Denice Shepherd Licensed Fiduciary/Attorney Hon. David L. Mackey Presiding Judge Superior Court in Yavapai County Sylvia Stevens Representative AARP Staff Caroline Lautt-Owens Director Dependent Children’s Services Administrative Office of the Courts Nancy Swetnam Director Certification and Licensing Division Administrative Office of the Courts Callie Parkinson Law Clerk for Hon. Ann A. Scott Timmer Page 2 of 432 Page I. Introduction ……………………………………………… 5 II. Executive Summary …………………………………….. 9 III. Assessments, Actions Taken, Additional Recommendations, and Notices of Other Issues ………………………. 10 A. Transition of Minors to Adult Guardianships and Conservatorships ………………………… 10 1. Assessment ………………………………… 10 2. Actions Taken….. …………………………. 12 3. Additional Recommendations……………… 15 4. Notice of Other Issues …………………….. 18 B. Judicial Oversight ………………………………. . 18 1. Assessment ………………………………… 18 2. Actions Taken….. ………………………… . 20 3. Additional Recommendations………………. 23 4. Notice of Other Issues ……………………… 72 C. Fees Paid to Fiduciaries and Attorneys from Estates ………………………. . …………. 75 1. Assessment …………………………………. 75 2. Actions Taken….. ………………………….. 78 3. Additional Recommendations………………. 81 4. Notice of Other Issues ……………………… 119 IV. Conclusion ……………………………………………… 120 Page 3 of 432 APPENDICES A List of Stakeholders…………………………………… 122 B. List of Workgroup Members……………………… ….. 127 C. Senate Bill 1081………………………………………. 130 D. Risk Assessment Tool (Triage Program A and B) ……. 139 Instructions Risk Assessment Tool Order Appointing Investigator Post Appointment E. Senate Bill 1499……………………………………… 163 F. Minimum Best Practices …………………………….. 197 G. Order to Guardian ……………………………………. 199 H. Order to Conservator …………………………………. 203 I. Order to Guardian and Conservator ………………….. 207 J. Proof of Restricted Account from Financial Institution.. 212 K. Form 5 (Contained in Rule 38)………………………… 214 L. Forms 6 – 10 (Contained in Rule 38)………………….. 219 M. Fee Guidelines…………………………………………. 279 N. Compendium of All Recommended Rules, Forms, and Guidelines ……………………………………….. Page 4 of 432 287 I. Introduction Approximately twenty-five percent of Arizona’s citizens are fifty-five years of age or older. This demographic places unique challenges on the Judicial Branch, including increased filings in the areas of adult guardianships, conservatorships, and increased exploitation and abuse of vulnerable adults. Additionally, disabled children and their parents encounter unique legal and financial issues when the child reaches the age of majority, necessitating court action. Protection of incapacitated and vulnerable individuals is an important concern of the Arizona Judicial Branch, as evidenced by key strategic initiatives in the Court’s strategic agenda: “Justice 2020, A Vision for the Future of the Arizona Judicial Branch.” Much progress has been made to improve court processing and oversight of probate matters. In the late 1990s, Arizona began to regulate “professional fiduciaries,” individuals and entities who serve as guardians, conservators, and personal representatives in probate cases for a fee. In June 2000, the Court appointed the Fiduciary Advisory Committee, which issued its Final Report to the Arizona Judicial Council (“AJC”) in June 2001. A number of the Committee’s recommendations resulted in changes to statutes, court rules, and procedures, including, for example, increased qualifications for licensed fiduciaries and authority for a judicial officer to issue a fiduciary arrest warrant. Other strategic Page 5 of 432 efforts taken over the last decade include the implementation of random audits of licensed fiduciaries and amendments to the statutory provisions regarding licensed fiduciaries serving as an agent under a power of attorney. Effective January 1, 2009, the Court adopted the Arizona Rules of Probate Procedure, which provide uniform, statewide practice standards for probate proceedings in the superior court.1 Although significant progress has been made over the past decade, additional efforts are needed to provide for the protection of vulnerable and incapacitated persons. Key initiatives contained in “Justice 2020” include simplifying the processing of guardianship cases and ensuring fiduciaries are held accountable for the services they provide to their vulnerable clients. To accomplish these goals, Chief Justice Rebecca White Berch issued Administrative Order No. 2010-52 on April 30, 2010, establishing the Committee on Improving Judicial Oversight and Processing of Probate Matters (“Committee”), which disbands with delivery of this report. Pursuant to the Administrative Order, the Committee was charged with the responsibility to consider and make recommendations regarding: (1) ways to The superior court in Arizona decides probate matters, among other case types. For ease of reference, courts and practitioners frequently refer to the superior court as the “probate court” when it decides these matters. Indeed, the name of this Committee includes the term. Use of this shorthand reference, however, may lead the public to mistakenly believe that a “probate court” exists separately from the superior court. In an attempt to dispel this impression, therefore, we refer to the “superior court” or the “court” in the body of this report. 1 Page 6 of 432 streamline the process when an incapacitated or vulnerable child reaches the age of majority and is in need of a guardian and/or conservator; (2) effective court oversight and monitoring of guardianships, conservatorships, and decedent estate cases; (3) statewide fee guidelines for professional fiduciaries and attorneys paid from a ward’s or protected person’s estate; and (4) the process used by courts to review and award fiduciary fees and attorney fees, particularly when disputed. The Committee was not authorized to investigate particular cases and did not do so. Additionally, the Committee lacked time and resources for such an undertaking. The Committee, however, received anecdotal input about problems faced in the superior court, and members of the Committee reported others. Therefore, the Committee considered the above-described issues with an eye towards how the current statutes, rules, procedures, and training regimens could be improved to foster the fair, efficient, and cost-effective handling of probate matters and further the best interests of vulnerable adults. The Committee established and maintained a site on the Arizona Judicial Branch’s website. In addition to posting pertinent documents for Committee and public view, the site invited public comment through use of a form or mailed letter. Additionally, the Committee sought public comment by identifying a list of stakeholders and asking those persons or groups to inform its members of the Committee’s charge and invite comment. A list of stakeholders is set forth in Page 7 of 432 Appendix A. For example, AARP sent out information to 100,000 Arizona members soliciting comments. Further, the Committee asked the presiding judge in each county to post a notice of the request for comment outside the doors of any courtroom used for probate hearings and sent letters to all State senators and State representatives asking them to inform constituent groups about the Committee’s request for input. Committee members invited comment at speaking events. Finally, the Committee’s request was contained in an Arizona Republic newspaper article entitled, “Comments on Probate Court Sought,” dated June 22, 2010. The Committee received approximately 200 written comments in addition to verbal comments made at public full-Committee meetings and to individual committee members outside meetings or at workgroup meetings. The full Committee met 18 times in public meetings over an approximate 13-month period. The Committee formed three workgroups to consider, respectively, (1) streamlining the transition for minors in need of protection to adult guardianships and conservatorships, (2) ensuring effective court oversight of probate matters, and (3) revising processes employed to review and approve fiduciary fees and attorney fees. Pursuant to authority conferred by the Administrative Order, the Chair appointed non-Committee members to join Committee members in the workgroups. A list of each workgroup’s membership is set forth in Appendix B. The Committee completed the bulk of its work through Page 8 of 432 these workgroups, which met publically for hundreds of hours. To accomplish their tasks, the workgroups reviewed information from the National Center for State Courts and the laws and procedures used in courts in other states, among other things. In October 2010, the Committee submitted an Interim Report focused primarily on potential statutory and rule changes in order to enable AJC to (1) recommend the supreme court either proceed with or refrain from making rule changes and/or suggesting the legislature make statutory changes, and (2) provide feedback to the Committee about the appropriateness of any alternative rule and statutory changes currently under consideration by the Committee. The Committee Chair presented the Interim Report at AJC’s meeting held October 21, 2010, and AJC took action on these recommendations, as described hereafter. At its meeting held June 10, 2011, the Committee voted to send this final report to AJC. II. Executive Summary This final report makes Recommendations A through F1 to AJC outlining steps to take to better enable the judiciary to protect Arizona’s vulnerable and incapacitated population. These recommendations are in addition to the 12 recommendations made to AJC in October 2010, some of which have been adopted and implemented. In essence, the Committee’s recommendations focus on Page 9 of 432 recommended rule, code, and statutory changes, some of which occurred during this past legislative session, designed to improve the court’s ability to oversee guardianships, conservatorships, decedents’ estates, and trusts, provide transparency and disclosure of pertinent information to wards, protected persons, beneficiaries, and other interested persons, and ensure all participants in probate matters are sufficiently informed and trained concerning the protection of vulnerable and incapacitated persons. In making these recommendations, the Committee attempted to balance considerations of unnecessary costs to an estate, projected benefits to subject persons and estates, and available court resources. III. Assessments, Actions Taken, Recommendations, and Notices of Other Issues A. Transition Conservatorships 1. of Minors to Adult Guardianships and Assessment A number of issues are faced by parents and other custodial caregivers (collectively, “parents” for ease of reference) of incapacitated children who are nearing their eighteenth birthdays and are in need of guardianships or conservatorships: (a) Parents often fail to consider the need for an adult guardianship or conservatorship until denied the right to act on behalf of their son or daughter when, for example, visiting a physician for the first time after the child’s Page 10 of 432 eighteenth birthday. When this occurs, the parent is often forced to seek an emergency, temporary guardianship order from the court. The lack of action before the child’s eighteenth birthday can cause unnecessary anxiety for the parent and adult son or daughter, place the latter’s needs in a state of flux, and increase the cost and time expended by the court, the parent, and the young adult. (b) Confusion reportedly exists among judicial officers regarding whether proceedings for imposition of an adult guardianship can be started while the proposed ward is a minor. As a result, proceedings before such officers are not commenced until after the child’s eighteenth birthday. In these cases, consequently, a gap exists in custodial authority over a person who needs a general or limited guardianship and/or conservatorship. (c) Conflicts often develop between divorced parents who serve as co- guardians to an adult incapacitated son or daughter or when only one parent serves as guardian. Both situations often upset the wards and necessitate the devotion of excessive court resources. Additionally, some confusion exists among judicial officers regarding their authority to act in these situations. (d) The guardianship and conservatorship process is confusing for many people, which necessitates a devotion of undue time to the process, results in mistakes that hamper the parties and the court, unnecessarily compels some Page 11 of 432 individuals to hire attorneys to gain an understanding of the process, and/or deters many people from engaging in the appropriate legal process. (e) The guardianship and conservatorship process can be expensive for families, which can deter them from seeking general or limited guardianships and conservatorships. Although the court can waive fees based on the financial position of the proposed ward or protected person, the forms used by many courts to determine waiver eligibility are daunting and unfairly convey an impression that fee waiver is dependent on the entire family’s finances. Fees mistakenly paid are not refunded. (f) In 2003, the legislature amended the probate code by incorporating portions of the updated Uniform Probate Code (“UPC”), including adding provisions for limited guardianships, which give more autonomy to wards. The legislature, however, did not include other provisions of the updated UPC, which emphasize that courts should consider limited guardianships before imposing unlimited guardianships. Many well-meaning parents are unaware of the availability of limited guardianships. Additionally, judicial officers may be less familiar with limited guardianships and therefore less likely to consider them. 2. Actions Taken On October 21, 2010, the AJC adopted the following recommendations made by the Committee in its Interim Report: Page 12 of 432 Recommendation 1: The supreme court should advocate for the legislature to expand the statutory “standby” guardianship provisions in the probate code. Recommendation 2: The supreme court should advocate for the legislature to include a statutory provision in the probate code that exclusively applies to incapacitated minors approaching adulthood. After adoption of these recommendations, Committee members worked with the supreme court’s legislative liaison, members of the Arizona Legislature, and interest group representatives regarding necessary legislation. Ultimately, the legislature enacted Senate Bill (“SB”) 1081 (Appendix C) for placement in A.R.S. chapter 225, which Governor Janice K. Brewer signed into law on April 25, 2011, with an effective date of July 20, 2011. SB 1081 provides as follows, in relevant part: (a) The bill expands “standby” guardianship procedures by authorizing a parent or spouse to appoint a guardian for an unmarried incapacitated child or spouse by any signed writing. The prior statute authorized appointment only by testamentary appointment in a will. In addition to prescribing other procedures, SB 1081 authorizes the court to confirm in advance the appointing parent’s or spouse’s selection upon a finding the parent/spouse will likely become unable to care for the incapacitated person within two years, thereby granting more control and peace of mind to that parent/spouse. See Ariz. Rev. Stat. (“A.R.S.”) §§ 145301 – 14-5301.02. Page 13 of 432 (b) A person interested in an alleged incapacitated minor’s welfare can initiate adult guardianship proceedings when the minor is seventeen years and 6 months of age and ask that the adult guardianship commence on the minor’s eighteenth birthday. Rather than repeat any recently concluded medical evaluation process to establish incapacity, the petitioner may satisfy the statutory obligation by providing a recent evaluation report authored by a physician, psychologist or registered nurse. A.R.S. § 14-5301.03. (c) A person interested in a minor’s welfare can initiate adult conservatorship proceedings when the minor is seventeen years and 6 months of age and ask that the adult conservatorship commence on the minor’s eighteenth birthday. A.R.S. § 14-5301.04. (d) After a minor under a conservatorship turns seventeen years of age, an interested person may petition for continuation of a conservatorship or other protective order beyond the minor’s eighteenth birthday rather than reinitiating proceedings after the minor turns eighteen. A.R.S. § 14-5401(B). (e) A party petitioning for a guardianship who seeks appointment of a parent or nonparent custodian for the alleged incapacitated person must name the court and case number of any action or proceeding in which any custodial order was previously entered regarding the proposed ward. A.R.S. § 14-5303. Page 14 of 432 3. Additional Recommendations Recommendation A: To implement SB 1081, the supreme court should immediately update the forms appended to Rule 38, Rules of Probate Procedure (“Probate Rule(s)”) as needed to account for the delayed effective date of court orders for guardianships/conservatorships that take effect on a minor’s eighteenth birthday. To the Committee’s knowledge, staff for the Administrative Office of the Courts (“AOC”) has already commenced the process of updating forms to account for changes made in SB 1081. Recommendation B: To implement SB 1081, the supreme court should immediately promulgate a rule requiring that the caption and case filing number of a conservatorship or other protective proceeding continued pursuant to A.R.S. § 14-5401 remains substantially the same. It is important to promulgate a rule to substantially maintain a caption and case filing number in a matter continued pursuant to recently enacted A.R.S. § 145401 to provide continuity for the court and the parties (e.g., case history, accounting deadlines, etc.) and to make certain the fiduciary continues to have access to financial accounts and other private information after entry of the continuation order. The Committee recommends the following new Probate Rule addition:2 Rule 5. Captions on Documents Filed With the Court Throughout this report, suggested additions to existing rules, statutes, and code provisions are noted by all-capital letters and deletions are demarcated by strike-outs. 2 Page 15 of 432 .... C. CONTINUATION OF CONSERVATORSHIP OR OTHER PROTECTIVE ORDER. A PETITION TO CONTINUE A MINOR CONSERVATORSHIP OR OTHER PROTECTIVE ORDER PURSUANT TO A.R.S. §14-5401(B) SHALL BE FILED IN THE PENDING PROTECTIVE PROCEEDING CASE. IF THE COURT GRANTS THE PETITION, THE CASE NUMBER SHALL REMAIN THE SAME BUT THE CAPTION SHALL BE AMENDED TO REFLECT THAT THE CONSERVATORSHIP OR OTHER PROTECTIVE ORDER IS FOR AN ADULT. The Committee submitted this proposed rule change to the supreme court in May 2011 pursuant to its request for suggested immediate rule changes needed in light of the enactment of SB 1081. On June 1, the court approved the proposed change with an emergency effective date of July 20. The court will release the rule for comment and consider any comments on its December rules agenda. Recommendation C: The supreme court should include within its legislative package for the 2012 session a provision authorizing the superior court to enter access orders and resolve access disputes arising between parents of adult wards. The supreme court should also ask for legislation specifying that any award of adult family support imposed pursuant to A.R.S. § 25-320(D) can be awarded by the court in probate proceedings. A parent’s legal obligation to support a child typically ceases when that child turns eighteen years of age or graduates high school, whichever occurs later. A.R.S. §§ 25-320(F) (Supp. 2008), 25-501(A) (2007). Under certain circumstances, however, the superior court can order either or both parents to provide support for mentally or physically disabled adult children if the disability began before the age of eighteen. A.R.S. § 25-320(E); see also A.R.S. § 25Page 16 of 432 501(A) (“In the case of mentally or physically disabled children, if the court, after considering the factors set forth in § 25-320, subsection D, deems it appropriate, the court may order support to continue past the age of majority.”). Not surprisingly, many adult children receiving continuing family support are adult wards. The statutes do not provide authority for the court to order visitation or to resolve disputes concerning access to adult wards, however. Judicial officers report frustration and inconsistency in resolving disputes that arise when one parent serves as a guardian or the parents serve as co-guardians. Often, these guardians had battled over parental visitation in family court proceedings when the ward was a minor; thus, it is not unusual for the highly emotional issues present in family court cases to shift to probate proceedings. Unlike in child custody and visitation disputes, however, the court in probate proceedings for adults lacks specific authority to resolve access disputes. The Committee recommends that the supreme court include within its legislative package for the 2012 session a provision that authorizes the court to impose access orders and resolve access disputes. Additionally, the court should specify that any award of adult family support imposed pursuant to A.R.S. § 25-320(D) can be awarded by the court in probate proceedings. Such authority would further the goal of SB 1081, which requires petitions for adult guardianships to include reference to prior custody Page 17 of 432 proceedings. Alternatively, the Committee recommends the supreme court grant this authority by Rule if it considers this a procedural device 3. (a) Notice of Other Issues Standby guardianships for minors with capacity. As previously described, SB 1081 provides authority for a parent or spouse to appoint a guardian for an unmarried incapacitated child or spouse by any signed writing. The Committee was not charged with the responsibility of considering changes to laws and rules exclusively governing guardianships that become necessary solely as a result of a child’s minority. Regardless, the Committee notes that an expanded standby provision for these guardianships would be useful. See A.R.S. § 14-5202 (addressing testamentary appointment of guardian for a minor). The Committee therefore urges the supreme court to point out the omission to the legislature during the 2012 session so that it may take action if it wishes to do so. B. Judicial Oversight 1. Assessment The number of Title 14 cases (guardianships, conservatorships, trusts and decedent estates) pending in Arizona’s courts presents challenges to providing effective judicial oversight. For example, as of the end of June 2010 (the last time fiscal year-end statistics were posted for the judiciary), 46,106 guardianships and conservatorships and 32,218 trust and decedent estate cases were pending in the Page 18 of 432 superior court statewide. http://www.azcourts.gov/Portals/39/2010DR/SuperiorTemporary.pdf#page=3 See As of June 2011, the Arizona Supreme Court had oversight responsibilities for 247 licensed fiduciaries 3 and 52 licensed fiduciary businesses, which include the 15 county public fiduciaries and the Arizona Department of Veterans Affairs. Courts in 13 of Arizona’s 15 counties do not have specialized departments to consider and decide Title 14 cases but instead include Title 14 cases among other case types for decision. The Committee identified the following issues affecting judicial oversight of guardianship and conservatorship cases: (a) Judicial officers are not required to participate in training specific to deciding Title 14 cases before presiding over such cases. Because most judicial officers did not practice as attorneys in Title 14 cases, the learning curve can be sharp. (b) Non-licensed family members or friends who petition to become guardians often lack critical information about what the position entails. Thus, post-appointment, they may realize belatedly they are ill-equipped for the position and/or fail to adequately perform their duties. Of these licensed fiduciaries, 67 serve the public through employment with a public fiduciary or the Arizona Department of Veterans Affairs. 3 Page 19 of 432 (c) Court-appointed attorneys, guardians ad litem, and court investigators are not required to participate in training specific to their roles in guardianship and conservatorship cases. (d) The judiciary’s auditing procedures are not sufficient to oversee all guardianships and conservatorships. (e) The process for obtaining guardianships and conservatorships can be daunting to parties involved in such proceedings, which either deters use of the system or causes confusion. (f) Confusion exists regarding the respective roles of court-appointed attorneys, guardians ad litem, and fiduciaries. (g) Alternative dispute resolution is not always available or used when disputes arise. (h) Only guardians are required to visit wards post-appointment, and no mechanism exists for periodic visits and reports by others to ensure the guardian or conservator is performing his or her duties appropriately. (i) The courts often lack sufficient resources to provide needed oversight and protection of Arizona’s vulnerable adults. 2. Actions Taken On October 21, 2010, the AJC approved or otherwise acted on the following recommendations made by the Committee in its Interim Report: Page 20 of 432 Recommendation 3: The supreme court should add a rule to the Probate Rules that requires funded, ongoing, unannounced postappointment visitation of wards and protected persons. AJC decided the Committee should study this proposal further and consider funding options. The Committee did so; additional recommendations are set forth in Recommendation E (p. 24). Recommendation 4: The supreme court should add a Probate Rule directing the superior court to create and conduct a funded program for random audits of conservatorship accountings to validate the accuracy of annual or biennial accounts currently required in all adult conservatorship matters. AJC decided the Committee should study the funding options for this recommendation further. The Committee did so; additional recommendations are set forth in Recommendation E (p. 24). Recommendation 5: The supreme court should explore funding sources for conducting periodic visitations, reporting, training, and random audits. AJC adopted this recommendation. Thereafter, at the Committee’s urging, AOC submitted a grant request entitled, “Strengthening the Operation of Arizona Probate Courts through Statewide Education” to the State Justice Institute (“SJI”). On April 27, 2011, SJI approved AOC’s request and issued a grant for $30,000.00 with an additional cash match of $21,569.00 for the development of a probate bench book for judicial officers and video-based, on-line training for non-licensed fiduciaries, attorneys representing a proposed adult ward or protected person, and Page 21 of 432 superior court investigators. In addition, these funds will be used to expand resources on the “Law for Seniors” website. Additional recommendations regarding funding are set forth in Recommendation E (p. 24). Recommendation 6: The supreme court should develop statewide uniform training requirements for major participants in guardianship and conservatorship cases in specified ways. AJC approved this recommendation in concept and referred the issue of training judicial branch employees to the Committee on Judicial Education and Training (“COJET”) 4 for further discussion and the development of a proposed program. At its meeting on December 2, 2010, COJET endorsed Recommendation 6 in concept and urged timely development of a program. The Judicial College of Arizona, which oversees education exclusively for judicial officers and reports to COJET, will address development of a program to educate judicial officers about probate. In the meantime, members of the Committee will present a program at the Arizona Judicial Conference this month to update judicial officers on new developments in probate during the past year. Chief Justice Berch ordered all judicial officers who preside over probate matters to attend this session. Aspects of Recommendation 6 that pertain to training for judicial branch employees remain pending before COJET. COJET assists the supreme court in developing educational policies and standards for employees of the judicial branch only. 4 Page 22 of 432 The Committee continued discussing training for judicial-branch employees and non-judicial-branch employees, and sets forth more detailed recommendations in this report. See Recommendations G – K, pp. 35 - 44. Recommendation 7: The supreme court should give priority to the development of automated case management systems that will substantially improve probate case monitoring and oversight by efficient and cost-effective means. AJC referred this recommendation to the Commission on Technology (“COT”) to determine where development of such case management systems falls within the judiciary’s automation priorities as it works to bring all state courts into the AZTurboCourt e-filing project. This matter remains pending before COT. Recommendation 8: The supreme court should develop uniform, interactive and dynamic electronic probate forms through AZTurboCourt or another online website that will allow documents to be electronically generated and filed. The court should prioritize phasing in AZTurboCourt for probate matters. AJC referred this recommendation to COT to determine where development of such forms falls within the judiciary’s automation priorities as it works to bring all state courts into the AZTurboCourt e-filing project. This matter remains pending before COT. In the meantime, the Committee developed some forms that can be used as interactive electronic forms. See Appendices D, G – L. 3. Additional Recommendations Recommendation D: The supreme court should appoint one person within AOC to serve as Probate Projects Coordinator to Page 23 of 432 ensure implementation of all recommendations eventually adopted by the supreme court. The Interim Report and this Final Report make numerous, comprehensive recommendations the Committee deems essential for improving court oversight of probate matters. Among other things, the Committee recommends the formation of task forces comprised of persons with particular expertise in probate and/or technology to create and implement various programs. Some of the jobs assigned to these task forces overlap or depend on the completion of work by other task forces or the promulgation of rules. Consequently, it is imperative that someone monitor implementation of the recommendations adopted by the supreme court and coordinate the work of all task forces to maximize an efficient and effective exchange of information and to keep the execution of work on schedule. The Committee believes a single person employed by AOC would be best able to accomplish this task because AOC provides administrative services to all courts in Arizona, and it reports to the supreme court. The Committee therefore recommends appointment of a Probate Projects Coordinator, with attendant, necessary support resources, to serve in this capacity at least until implementation of all recommendations adopted by the supreme court is complete. Recommendation E: The supreme court should add a Probate Rule that requires funded, ongoing, unannounced postappointment visitation of all wards and protected persons. If the court is unable to secure adequate funding to implement this recommendation, the court should add a Probate Rule that Page 24 of 432 authorizes a variety of post-appointment review tools using a triage model. Sections 14-5303(C), and 14-5407(B), A.R.S., currently provide for a court investigator to conduct an investigation and prepare a report for the court pertaining to the need for a proposed guardianship or conservatorship and the suitability of the proposed appointee to serve as a fiduciary. There is no mechanism for requiring annual unannounced visits and reports to the court by someone other than the guardian, however. 5 In order to better detect when wards and protected persons are abused or neglected, the Committee recommended in the Interim Report that unannounced in‐person visits be conducted on an annual basis to evaluate the welfare and condition of adults under the court’s protection. These visits should be documented in a report to the court. If available resources cannot support annual visits and reports, the Committee alternatively recommended a longer period of time between visits but not less than biennially. 6 The superior court in Maricopa County voluntarily operates the “Guardianship Review Program,” which uses volunteer court visitors to check on the welfare of wards and protected persons and report to the court. The Committee is additionally aware that Tarrant County, Texas and Washington D.C. have well-developed court-visitation programs. 6 The Committee’s Recommendation complements one made by a Joint Task Force of the Conference of Chief Justices and the Conference of State Court Administrators on Elders and the Courts, in conjunction with the National Center for State Court’s Center for Elders and the Courts, and reported in the Adult Guardianship Court Data and Issues Results from an Online Survey dated March 2, 2010 (“NCSC Report”). Recommendation 3 in the NCSC Report provides: “Each state court system should implement procedures for monitoring the performance of guardians and conservators and the well-being of incapacitated persons.” 5 Page 25 of 432 Acknowledging that the Committee considered annual or biennial visits in every case to be optimal, AJC nevertheless asked the Committee to develop an alternative recommendation, considering particularly whether the court’s limited resources can be used to target post-appointment visitation with wards/protected persons determined to be at risk for neglect, abuse, or financial exploitation. The Committee considered these factors and created two alternate programs based on a case triage model. Triage Program A. During the pre-appointment evaluation, the investigator or court visitor completes a risk assessment tool (see Appendix D), which requires identification of known risk factors in a given case. The tool is designed to help the court gauge the level of priority of a case for post-appointment monitoring, identify the most appropriate method of review, and choose who should conduct that review. The investigator 7 primarily gathers the information by interviewing the prospective ward/protected person, appointed counsel, and the petitioner and by reviewing reports. Following written instructions, the investigator then assesses the ward’s/protected person’s current and future stability and potential for harm or loss by examining current social structure, residential environment, interdependency issues and available resources, and legal and social advocacy services. Each The court can assign another court employee to do the assessment or any follow up assessments warranted. For ease of reference, we refer to an investigator. 7 Page 26 of 432 assessment is given a numbered score; these numbers are added together to give the potential ward or protected person a total risk level score. The scores fall into one of three ranges: minimal risk, moderate risk, maximum risk. The investigator is encouraged to provide comments and justification for deviating from a seemingly applicable scoring range. The risk assessment tool is filed with the court as a confidential document. Thereafter, assuming appointment of a fiduciary, the judicial officer simultaneously orders a level of post-appointment follow-up that must include some type of visitation. For example, the court may order a telephonic interview with the ward/protected person biennially, an annual inperson visit, or a combination of actions, including a case compliance audit or forensic investigation. Post-appointment visitations are conducted by court employees or designees, such as volunteers. Using volunteers would result in satisfying the judicial monitoring obligation at minimal cost, although a paid, full-time employee must be used to coordinate volunteers. Members of the Committee conferred with Erica Woods, ABA Commissioner on Law and Aging, who is knowledgeable about guardianship monitoring programs used throughout the United States.8 Ms. Woods Ms. Woods reported that the ABA and AARP developed a monitoring program in approximately 1991 that 53 courts used, including the superior court in Maricopa County. Funding for the programs ended after seven years; three years later only half the courts had maintained the program. The court in Maricopa County will embark on a new pilot visitation program with the ABA and AARP commencing with a site visit scheduled for August 2011. The ABA and AARP are currently using SJI grant funds to update a monitoring program handbook 8 Page 27 of 432 identified several possible sources of volunteers, including retired judges,9 social work students, nursing students, 10 and law school students. Significantly, these volunteer visitors serve as more than the eyes and ears of the court; they provide community resource information as needed to guardians to better enable them to serve their wards’ best interests. To implement Triage Model A, the supreme court should promulgate an addition to Probate Rule 30 similar to the following: Rule 30. Guardianships/Conservatorships – Specific Procedures .... D. INDEPENDENT CASE REVIEW 1. DURING A PRE-APPOINTMENT INVESTIGATION OF A SUBJECT PERSON PURSUANT TO A.R.S. § 14-5308(B), AN INVESTIGATOR SHALL ASSESS THE NEED FOR POSTAPPOINTMENT MONITORING THROUGH USE OF RISK ASSESSMENT CRITERIA ESTABLISHED BY THE SUPREME COURT AND SET FORTH IN A FORM. THE INVESTIGATOR SHALL FILE THE RISK ASSESSMENT FORM WITH THE COURT UPON COMPLETION OF THE INVESTIGATION. that will be made available electronically along with forms. The supreme court should monitor their progress and obtain the handbook and forms for potential use. 9 Maricopa County hired a volunteer supervisor and uses retired judges. It reports difficulties with recruitment from such a small pool. Regardless, it anecdotally reports finding problems in 5% of cases in which visitation occurred. 10 For example, Washington D.C. partnered with five local universities to use social work students to make visits and respond to questions. The program employs a trained social worker, who recruits, trains, assists, and coordinates students in their volunteer duties. The program has eight students, who visit approximately 90 wards/protected persons each year – just under 10% of the court’s caseload. Page 28 of 432 2. UPON APPOINTMENT OF A GUARDIAN OR CONSERVATOR FOR AN ADULT, THE SUPERIOR COURT SHALL CONSIDER THE RISK ASSESSMENT INFORMATION PROVIDED BY THE INVESTIGATOR AND ORDER ONE OR MORE METHODS OF CASE REVIEW. SUCH METHODS MUST INCLUDE VISITATION OF THE SUBJECT PERSON AND MAY INCLUDE FINANCIAL REVIEW. THE COURT MUST ORDER SOME TYPE OF CASE REVIEW AT LEAST BIENIALLY. 3. THE COURT MAY USE VOLUNTEERS TO VISIT ADULT WARDS AND PROTECTED PERSONS. ANY VOLUNTEER MUST SUBMIT TO A CRIMINAL BACKGROUND CHECK AND UNDERGO TRAINING AS REQUIRED BY THE SUPREME COURT. 4. IN DETERMINING WHETHER THE SUBJECT PERSON IS IN NEED OF A GUARDIANSHIP OR CONSERVATORSHIP, THE COURT SHALL NOT CONSIDER THE RISK ASSESSMENT FORM COMPLETED PURSUANT TO THIS RULE, NOR SHALL THE RISK ASSESSMENT FORM BE ADMISSIBLE IN EVIDENCE DURING ANY HEARING ON WHETHER A GUARDIAN OR CONSERVATOR SHOULD BE APPOINTED FOR THE SUBJECT PERSON. Triage Program B. This program proceeds as Triage Program A with one exception: the court has discretion to forego any post-appointment case review. Under this program, it is anticipated the court will require some type of post-appointment review only if it concludes a subject person is at maximum risk for neglect, abuse, or financial exploitation. The risk assessment form remains substantially similar to the one used for Triage Program A but contains options for the court to take no action postappointment. See Appendix D. This program is necessitated when counties have insufficient resources to implement Triage Program A. Page 29 of 432 To implement Triage Model B, the supreme court should promulgate an addition to Probate Rule 30 like the following, which is substantially similar to the rule amendment recommended for Triage Program A but makes post-appointment review discretionary: Rule 30. Guardianships/Conservatorships – Specific Procedures .... D. INDEPENDENT CASE REVIEW 1. DURING A PRE-APPOINTMENT INVESTIGATION OF A SUBJECT PERSON PURSUANT TO A.R.S. § 14-5308(B), AN INVESTIGATOR SHALL ASSESS THE NEED FOR POSTAPPOINTMENT MONITORING THROUGH USE OF RISK ASSESSMENT CRITERIA ESTABLISHED BY THE SUPREME COURT AND SET FORTH IN A FORM. THE INVESTIGATOR SHALL FILE THE RISK ASSESSMENT FORM WITH THE COURT UPON COMPLETION OF THE INVESTIGATION. 2. UPON APPOINTMENT OF A GUARDIAN OR CONSERVATOR FOR AN ADULT, THE COURT SHALL CONSIDER THE RISK ASSESSMENT INFORMATION PROVIDED BY THE INVESTIGATOR. AT THE COURT’S DISCRETION, IT MAY ORDER ONE OR MORE METHODS OF CASE REVIEW. SUCH METHODS MAY INCLUDE VISITATION OF THE SUBJECT PERSON AND FINANCIAL REVIEW. 3. THE COURT MAY USE VOLUNTEERS TO VISIT ADULT WARDS AND PROTECTED PERSONS. ANY VOLUNTEER MUST SUBMIT TO A CRIMINAL BACKGROUND CHECK AND UNDERGO TRAINING AS REQUIRED BY THE COURT. 4. IN DETERMINING WHETHER THE SUBJECT PERSON IS IN NEED OF A GUARDIANSHIP OR CONSERVATORSHIP, THE COURT SHALL NOT CONSIDER THE RISK ASSESSMENT FORM COMPLETED PURSUANT TO THIS RULE, NOR SHALL THE RISK Page 30 of 432 ASSESSMENT FORM BE ADMISSIBLE IN EVIDENCE DURING ANY HEARING ON WHETHER A GUARDIAN OR CONSERVATOR SHOULD BE APPOINTED FOR THE SUBJECT PERSON. Resources for independent case review An investigator’s use of the risk assessment tool in the pre-appointment stage will not result in any cost to the courts as this evaluation is already required.11 If the court implements post-appointment case evaluations, a cost will be incurred. The Committee examined data from different sources in attempting to affix a cost to a post-appointment visitation program. According to Ms. Woods from the ABA, the cost of volunteer visitation programs at county levels has ranged from $10,000 - $30,000 annually. Assuming $30,000 is the average cost for urban counties and $10,000 is the average cost for non-urban counties, we should anticipate an annual statewide cost of approximately $300,000 for a visitation program. 12 In Ada County, Idaho, the visitation program costs on average $50 per case.13 In Maricopa County, the visitation program costs on average $44 per case.14 Based on these figures, the supreme court can expect any program to cost $40 - $50 per case for visitation. If something other than visitation is ordered, the Petitioners pay approximately $400 in fees for investigator services. This calculation assumes two urban counties and thirteen non-urban counties. 13 Ada County’s program uses two full-time employees and five or six volunteers. The program budget is approximately $100,000. 14 Maricopa County’s program uses contract court investigators for $20 per hour. Each investigator spends approximately two to two and one-quarter hours for a visit. 11 12 Page 31 of 432 cost will likely decrease. The court should bear in mind, however, that the abovedescribed programs are not precisely comparable to the post-appointment case review models suggested by the Committee, and therefore the costs may not correlate. Thus, the supreme court should consider these as rough estimates of any program implemented in Arizona’s courts. The Committee has identified sources of funding for a post-appointment case review program. The supreme court could impose an additional filing fee on guardianship reports and conservatorship accounts. For instance, a $20-$25 fee imposed for filing an annual guardianship report or annual conservatorship account would generate approximately $40-$50 for biennial case reviews. Fees could also be assessed against fiduciaries who fail to comply with filing requirements. Because filing fees are already steep, however, the court should consider asking the legislature to impose a smaller fee on a larger group for use in case review. For example, the legislature could assess $1 for issuance of a death certificate, which could be paid to a fund to use for post-appointment case review, including visitation. In Arizona in 2009, approximately 45,000 people died. Assuming an average of three death certificates per person were issued, the surcharge would generate $135,000 annually. Assuming an average of five death certificates per person were issued, the surcharge would generate approximately $225,000 annually. Another source of funding is the general fund. The supreme court Page 32 of 432 should consider asking the legislature for program funding on a statewide basis. If the legislature is unable to fund the programs entirely, it could work with county governments to split funding obligations. Any filing fees should be deposited into the probate fund prescribed by A.R.S. § 14-5433. Subsection C of that provision provides authority for the court to expend moneys from the probate fund for postappointment visitation. If the legislature funds the program from the general fund or by imposing a surcharge on death certificates, those moneys should be placed in the confidential intermediary and fiduciary fund pursuant to A.R.S. § 8-135. The legislature should also amend subsection A of that provision to authorize use of the funds for a post-appointment case review program. The Committee realizes that the cost and effectiveness of a postappointment case review program is uncertain. The Committee therefore recommends that courts in urban and non-urban counties choose either Triage Program A or Triage Program B to run for six months as pilot projects. Thereafter, the supreme court can consider whether to require one, either, or a modified review program. If a pilot project is authorized, the supreme court should designate the risk assessment tool as a confidential document by administrative order. If the court adopts either or both models on a permanent basis, the court should add the risk assessment tool to the list of confidential documents in Probate Rule 7. The Committee further recommends appointment of a focused task force to oversee Page 33 of 432 creation, implementation, tracking, and reporting of the pilot projects. Among others things, the task force should conduct a feasibility study to arrive at a more accurate cost for the program and develop a compendium of community resources to provide to guardians as needed. The task force should include a mix of judicial officers, professional fiduciaries, investigators and court administrators familiar with probate, and a social worker. The task force should report to the Probate Projects Coordinator (see Recommendation D, p. 23). Recommendation F: The supreme court should add a Probate Rule directing the superior court to create and conduct a funded program for random audits of conservatorship accounts to validate the accuracy of annual or biennial accounts currently required in all adult conservatorship matters. The Committee recommended in its interim report that random audits be conducted (i) by the court’s own designated staff; (ii) by independent contractors solicited and retained for this purpose as court services providers; or (iii) by independent licensed fiduciaries who have contracted with the court to perform such services. The scope of conservatorship cases subject to court‐ordered random audits may be limited to cases above a certain threshold unrestricted asset amount, such as $100,000 or $200,000. The Committee further suggested that the supreme court should exempt from audit licensed fiduciaries, which include a county public fiduciary, the Arizona Department of Veterans Services, and private professional fiduciaries. These licensed fiduciaries are already under regulatory oversight of Page 34 of 432 the Arizona Supreme Court and subject to random audit pursuant to Arizona Code of Judicial Administration § 7-201(D)(2)(b)(4). AJC asked the Committee to review funding sources for a random audit program. The funding sources found are the same as those set forth in Recommendation E (p. 24). The Committee reiterates its recommendation that the supreme court create and conduct a funded system of random audits. Recommendation G: The supreme court should immediately develop statewide uniform training requirements for judicial officers and a bench book to comply with recently enacted A.R.S. § 14-1101. During the 2011 legislative session, members of the Committee worked with the supreme court’s legislative liaison, members of the Arizona Legislature, and interest group representatives regarding necessary legislation to improve the court’s ability to oversee probate matters. Ultimately, the legislature enacted SB 1499 (Appendix E), which Governor Janice K. Brewer signed into law on April 29, 2011 with an effective date from and after December 31, 2011.15 Among other things, SB 1499 requires judicial officers presiding over probate matters to participate in training as prescribed by the supreme court. A.R.S. § 14-1101. The Committee recommended in the interim report that judicial officers complete training focused solely on probate matters before deciding probate The Committee Chair reported the progress of SB 1499 to AJC at its March 2011 meeting and secured AJC’s approval of the Committee’s recommendations regarding this statute. 15 Page 35 of 432 matters and then take a refresher course a minimum of every 5 years. Additionally, the Committee recommended development of a statewide comprehensive bench book for use as a reference by judicial officers. The Committee reiterates these recommendations and further suggests that the supreme court appoint a focused task force to develop the required training regimen and a bench book that includes the practices set forth in Appendix F. The task force should include a mix of judicial officers, court administrators and attorneys experienced in probate, and fiduciaries. The Judicial College of Arizona should oversee the task force as it is responsible for judicial officer training. The Committee additionally recommends that the supreme court set a deadline for implementation of an appropriate training regimen and bench book. It is the Committee’s understanding that the SJI grant money can be used to accomplish these tasks. Recommendation H: The supreme court should develop a mandatory, uniform, online, statewide training program for all non-licensed fiduciaries. Licensed fiduciaries handle a relatively small percentage of Title 14 cases. Most often, a non-licensed person, such as a parent, relative, or friend of the ward, protected person, or decedent serves as the fiduciary. Many of these individuals likely have little or no idea of the requirements for serving as a fiduciary. Therefore, the supreme court should advocate for adoption of a statute similar to Page 36 of 432 A.R.S. § 25-351 et seq. or create a Probate Rule that requires all parents involved in a dissolution proceeding to complete a parenting class, and requires all nonlicensed fiduciaries to complete a training program prior to being appointed by the court as a fiduciary, unless an emergency exists. The Committee suggests the training program should not be more than 90 minutes in length, be available for viewing at all courthouses as well as Internet-based, and that an online assessment be given and a certificate issued upon successful completion of the course. This recommendation coincides with recommendation 2 of the NCSC Report, which suggests each court system “develop written and online materials to inform nonprofessional guardians and conservators about their responsibilities and how to carry out those responsibilities effectively.” Should the supreme court prefer to achieve this recommendation by court rule rather than by urging enactment of a new statutory section, the Committee suggests that a rule be incorporated into the Probate Rules as Rule 27 under part IV, “Procedures Relating to the Appointment of Fiduciaries.” In order to maintain uniformity with the style and structure of the existing rules, it is suggested that the proposed rule read as follows: RULE 27.1. TRAINING FOR NON-LICENSED FIDUCIARIES. A. ANY PERSON WHO IS NEITHER A LICENSED FIDUCIARY UNDER A.R.S. § 14-5651 NOR A FINANCIAL INSTITUTION SHALL COMPLETE A TRAINING PROGRAM APPROVED BY THE SUPREME COURT BEFORE LETTERS TO SERVE AS A GUARDIAN, Page 37 of 432 CONSERVATOR, OR PERSONAL REPRESENTATIVE ARE ISSUED UNLESS THE APPOINTMENT WAS MADE PURSUANT TO SECTIONS 14-5310(A), 14-5401.01(A) OR 14-5207(C). B. IF THE APPOINTMENT WAS MADE BECAUSE AN EMERGENCY EXISTED, THE FIDUCIARY SHALL COMPLETE THE TRAINING PROGRAM WITHIN THIRTY DAYS OF APPOINTMENT OR BEFORE THE PERMANENT APPOINTMENT OF THE FIDUCIARY, WHICHEVER IS EARLIER. FOR GOOD CAUSE, THE COURT MAY EXTEND THE TIME PERIOD FOR THE FIDUCIARY TO COMPLETE THE TRAINING PROGRAM. C. FOR PURPOSES OF THIS RULE, “FINANCIAL INSTITUTION” MEANS A BANK THAT IS INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION AND CHARTERED UNDER THE LAWS OF THE UNITED STATES OR ANY STATE, A TRUST COMPANY THAT IS OWNED BY A BANK HOLDING COMPANY THAT IS REGULATED BY THE FEDERAL RESERVE BOARD, OR A TRUST COMPANY THAT IS CHARTERED UNDER THE LAWS OF THE UNITED STATES OR THIS STATE. The Committee previously made this recommendation to AJC in its Interim Report. AJC approved the recommendation in concept and referred it to COJET for further vetting. COJET, however, has not addressed the recommendation as it is not responsible for training persons outside the judicial branch. Consequently, the Committee reiterates the recommendation and further suggests that the supreme court appoint a focused task force to develop the required training program. The task force should include licensed fiduciaries, a person familiar with programming web-based training, and court administrators and attorneys experienced in probate. The Arizona Fiduciaries Association has informed the Committee of its willingness to assist in creating training materials, including a Page 38 of 432 video. The Probate Projects Coordinator (see Recommendation D, p. 23) should oversee the task force. The Committee additionally recommends that the supreme court set a deadline for implementation of an appropriate training program. It is the Committee’s understanding that the SJI grant money can be used to accomplish these tasks. Recommendation I: The supreme court should rename and expand the Seniors and Probate website maintained by the judiciary to ensure all interested persons can obtain information about the duties of a fiduciary, the guardianship and conservatorship process, forms, and other resources for Title 14 cases. Help desks or self-service centers are not uniformly available throughout the State. By providing better resources to self-represented parties, the court will improve probate case processing and monitoring. By providing an online self-help center concerning probate issues, the supreme court would likely enhance the ability of non-licensed fiduciaries and self-represented interested parties to learn about the process, avoid missteps, and spot abuses to point out to the court. A fine example of a self-help center for probate is found on Ramsey County, Minnesota’s website, which is located at http://www.mncourts.gov/district/2/?page=524. See also online self-service center tools developed by Los Angeles County, California, http://www.lasuperiorcourt.org/probate/selfhelp.htm, and the California Administrative Office of the Courts, http://www.courtinfo.ca.gov/selfhelp/ Currently, the judiciary maintains a Seniors and Probate website that can be Page 39 of 432 expanded to fulfill these http://www.azcourts.gov/PublicServices/SeniorsProbateLaw.aspx purposes. In addition, a collaborative effort between the Arizona Foundation for Legal Services and Education and the supreme court resulted in the production and ongoing funding of the Law for Seniors website, www.LawforSeniors.org, which is found on the Seniors and Probate website and can be expanded to provide additional information for seniors and for those who care for them. The Committee previously made this recommendation to AJC in its Interim Report. AJC approved the recommendation in concept and referred it to COJET for further vetting. COJET, however, has not addressed the recommendation as it is not responsible for training persons outside the judicial branch. Consequently, the Committee reiterates the recommendation and further suggests that the supreme court appoint a focused task force to develop forms and training materials, which can be placed online for consultation. Additionally, the task force should develop “smart forms” in conjunction with the AZTurboCourt process for ease and accuracy of filing required forms such as annual accounts. The task force should include a mix of licensed fiduciaries, court administrators and attorneys familiar with probate, and a person familiar with implementing forms into the AZTurboCourt system. The task force should coordinate with the task force appointed pursuant to Recommendation H in developing training materials and Page 40 of 432 forms to ensure efficiency and consistency. The Probate Projects Coordinator (see Recommendation D, p. 23) should oversee the task force and provide coordination with the Recommendation H task force. The Committee additionally recommends that the supreme court set a timeframe for creating the training materials and forms, placing them online, and eventually implementing smart forms in AZTurboCourt. It is the Committee’s understanding that the SJI grant money can be used to accomplish these tasks. Finally, the Committee believes the name of the website should be changed to something like, “Law for Seniors and the Vulnerable” and include material relevant to both minor and adult guardianships and conservatorships as well as existing materials relating to seniors. The Committee suggests persons with marketing expertise craft an appropriate name for the site. Recommendation J: The supreme court should require any attorney wanting to be appointed as counsel or guardian ad litem for a proposed adult ward or protected person to complete a court-approved training program before accepting the first appointment. Attorneys play vital roles in many guardian and conservatorship cases, particularly when appointed to represent a proposed ward or protected person or to serve as a guardian ad litem. Therefore, the supreme court should create a Probate Rule requiring any attorney wanting to be appointed as counsel for a proposed adult ward or protected person or guardian ad litem for a proposed adult ward or Page 41 of 432 protected person to first complete a statewide training program. 16 The Rule should require attorneys with existing appointments to complete the training as soon as practicable. All attorneys accepting appointments should re-certify with a refresher training course that provides more advanced training no later than every five years. The Committee suggests the training program be Internet-based, an online assessment be given, and a certificate issued upon successful completion of the course. The Committee is not charged with responsibility for addressing issues relating to minor conservatorships. Nevertheless, the supreme court may wish to create a similar rule requiring training for attorneys appointed to minor guardianship and conservatorship matters. The Committee previously made this recommendation to AJC in its Interim Report. AJC approved the recommendation in concept and referred it to COJET for further vetting. COJET, however, has not addressed the recommendation as it is not responsible for training persons employed outside the judicial branch. Consequently, the Committee reiterates the recommendation and further suggests that the supreme court appoint a focused task force to develop the required training program. The task force should include a mix of judicial officers, court An exception to this requirement might be made when a proposed ward or protected person wishes to hire his or her own attorney, and insufficient time exists to complete the training before assumption of the representation. 16 Page 42 of 432 administrators and attorneys experienced in probate, a person knowledgeable about programming Web-based training, and a member of the state bar familiar with attorney education. The Probate Projects Coordinator (see Recommendation D, p. 23) should oversee the task force. The Committee additionally recommends that the supreme court set a deadline for implementation of an appropriate training program. It is the Committee’s understanding that the SJI grant money can be used to accomplish these tasks. After creation of a training program, the Committee recommends promulgation of a Probate Rule setting forth the requirements for attorneys seeking appointments. The task force should recommend the Rule in order to tailor it to the training requirements decided upon. The Rule might appear something like the following: RULE 10(E): DUTIES OF COUNSEL FOR SUBJECT PERSON OF GUARDIANSHIP/CONSERVATORSHIP PROCEEDING; DUTIES OF GUARDIAN AD LITEM 1. INITIAL TRAINING. ANY ATTORNEY WHO SERVES AS A COURT-APPOINTED ATTORNEY OR GUARDIAN AD LITEM FOR A PROPOSED ADULT WARD OR ADULT PROTECTED PERSON MUST FIRST COMPLETE A TRAINING COURSE PRESCRIBED BY THE SUPREME COURT, WHICH WILL ISSUE A CERTIFICATE OF COMPLETION. THE ATTORNEY MUST FILE A COPY OF THE CERTIFICATE OF COMPLETION WITH THE ADMINISTRATIVE OFFICE OF THE COURT OR THE SUPREME COURT’S DESIGNEE NO LATER THAN TEN DAYS AFTER ENTRY OF THE APPOINTMENT ORDER. ANY ATTORNEY WHO, AT THE TIME THIS RULE BECOMES EFFECTIVE, IS Page 43 of 432 SERVING AS COURT-APPOINTED ATTORNEY OR GUARDIAN AD LITEM FOR AN ADULT WARD OR PROTECTED PERSON MUST COMPLETE A TRAINING COURSE PRESCRIBED BY THE SUPREME COURT AS SOON AS PRACTICABLE AND THEREAFTER MUST FILE A CERTIFICATE OF COMPLETION WITH THE ADMINISTRATIVE OFFICE OF THE COURT OR THE SUPREME COURT’S DESIGNEE. 2. SUBSEQUENT TRAINING. AFTER COMPLETING THE INITIAL TRAINING COURSE PRESCRIBED BY THE SUPREME COURT, ANY ATTORNEY WHO CONTINUES TO SERVE AS A COURT-APPOINTED ATTORNEY OR GUARDIAN AD LITEM FOR AN ADULT WARD OR PROTECTED PERSON MUST COMPLETE AN ADDITIONAL TRAINING COURSE PRESCRIBED BY THE SUPREME COURT EVERY FIVE YEARS AND FILE A CERTIFICATE OF COMPLETION AS SET FORTH IN SUBSECTION 1. 3. In a guardianship or conservatorship proceeding, the participation of an attorney representing the subject person shall terminate upon the subject person’s death. In extraordinary situations, the court, for good cause shown, may authorize the limited participation of the subject person’s attorney after the subject person’s death. In such cases, the court shall set forth, in its order authorizing the attorney’s continued participation, the basis for the continued participation and the scope of the attorney’s participation. Recommendation K: The supreme court should develop a mandatory, statewide training program and require all superior court investigators in Title 14 and Title 36 cases to successfully complete it before their initial appointment to a case. Section 14-5308, A.R.S., requires each court investigator appointed by the court in an action seeking appointment of a guardian or conservator for an adult to “have a background in law, nursing or social work and [to] have no personal interest in the proceedings.” The investigators serve as the eyes and ears of the Page 44 of 432 judicial officers. Thus, the supreme court should create a rule requiring any person wanting to be appointed as an investigator and meeting the statutory qualifications to complete a statewide training program. The Rule should require investigators with existing appointments to complete the training as soon as practicable. All investigators accepting appointments should re-certify with a refresher training course that provides more advanced training no later than every five years. The Committee suggests the training program be Internet-based, an online assessment be given, and a certificate issued upon successful completion of the course. The Committee previously made this recommendation to AJC in its Interim Report. AJC approved the recommendation in concept and referred it to COJET for further vetting. The Education Services division of AOC is aware of the requirement and intends to develop a training plan for future consideration by COJET. The Committee reiterates the recommendation and further suggests that the supreme court appoint a focused task force to develop the required training program. The task force should include a mix of judicial officers, court administrators and investigators experienced in probate, and a person knowledgeable about programming Web-based training. The Probate Projects Coordinator (see Recommendation D, p. 23) should oversee the task force. The Committee additionally recommends that the supreme court set a deadline for Page 45 of 432 implementation of an appropriate training program. It is the Committee’s understanding that the SJI grant money can be used to accomplish these tasks. After creation of a training program, the Committee recommends promulgation of a Probate Rule setting forth the requirements for investigators seeking appointments. The task force should recommend the Rule in order to tailor it to the training requirements decided upon. The Rule might appear something like the following: RULE 10(F): DUTIES OF INVESTIGATORS. 1. BEFORE BEING APPOINTED AS AN INVESTIGATOR PURSUANT TO A.R.S. §§ 14-5303(C), 14-5407(B), OR 36-540(G), A PERSON MUST FIRST COMPLETE A TRAINING COURSE PRESCRIBED BY THE SUPREME COURT, WHICH WILL ISSUE A CERTIFICATE OF COMPLETION. THE INVESTIGATOR MUST FILE A COPY OF THE CERTIFICATE OF COMPLETION WITH THE ADMINISTRATIVE OFFICE OF THE COURT OR THE SUPREME COURT’S DESIGNEE. 2. AFTER COMPLETING THE INITIAL TRAINING COURSE PRESCRIBED BY THE SUPREME COURT, ANY PERSON WHO CONTINUES TO SERVE AS A COURT-APPOINTED INVESTIGATOR MUST COMPLETE AN ADDITIONAL TRAINING COURSE PRESCRIBED BY THE SUPREME COURT EVERY FIVE YEARS AND FILE A CERTIFICATE OF COMPLETION AS SET FORTH IN SUBSECTION A. Recommendation L: The supreme court should immediately promulgate Probate Rule and the Arizona Code of Judicial Administration changes to further delineate the roles of courtappointed attorneys, guardians ad litem, and fiduciaries. As set forth in the Interim Report, confusion regarding the respective roles of court-appointed attorneys, guardians ad litem, and fiduciaries affects judicial Page 46 of 432 oversight of guardianship and conservatorship cases and can unnecessarily increase the fees and costs to the estates of wards and protected persons. Fiduciaries often feel obligated to attend depositions or court proceedings even though their attorney’s attendance would suffice to serve the ward’s or protected person’s best interests. Also, the role of guardians ad litem is often undefined, leading to duplicative efforts with court-appointed attorneys, and appointment terms can last longer than necessary. The Committee further concludes that a fiduciary represented by counsel may be able to competently prepare and file some documents and appear in uncontested court proceedings without the need for counsel to perform these tasks, as is currently mandated.17 Indeed, unrepresented, non-licensed fiduciaries perform such tasks routinely without attorney assistance. To eliminate confusion regarding the respective roles of a fiduciary, an attorney appointed for a ward/protected person, and a guardian ad litem, and to eliminate unnecessary expenditures of attorney fees, the Committee recommends that the supreme court immediately promulgate the following rules and Arizona Code of Judicial Administration (“ACJA”) changes: Arizona Rules of Probate Procedure Most if not all bonding companies require fiduciaries to retain counsel. Currently, if counsel appears of record in a case, the fiduciary is not permitted to file documents or appear in court without that counsel. Additionally, other attorneys are ethically prohibited from communicating directly with represented fiduciaries. 17 Page 47 of 432 Rule 10. Duties Owed BY COUNSEL, FIDUCIARIES, UNREPRESENTED PARTIES, AND INVESTIGATORS A. Duties of Counsel. .... B. Duties of Unrepresented Parties. .... C. Duties of Court-Appointed Fiduciaries. 1. A court-appointed fiduciary shall .... b. REFRAIN FROM CHARGING TO ATTEND COURT PROCEEDINGS, INCLUDING DEPOSITIONS, UNLESS SUCH ATTENDANCE IS REQUIRED BY LAW, COURT ORDER, OR OTHER CIRCUMSTANCES SUCH THAT THE FIDUCIARY’S ATTENDANCE IS NECESSARY; [LETTERING OF SUBSEQUENT, EXISTING SUBPARAGRAPHS CHANGED TO ACCOMMODATE INSERTION OF (b)] .... D. Duties Relating to Counsel for Fiduciaries Upon Withdrawal. 1. TO MINIMIZE LEGAL EXPENSES INCURRED BY THE BENEFICIARY OF THE FIDUCIARY RELATIONSHIP, A FIDUCIARY’S ATTORNEY SHALL ENCOURAGE THE FIDUCIARY TO TAKE THOSE ACTIONS THE FIDUCIARY IS AUTHORIZED TO PERFORM AND CAN PERFORM COMPETENTLY ON THE FIDUCIARY’S OWN TO FULFILL THE FIDUCIARY’S DUTIES RATHER THAN HAVING THE ATTORNEY TAKE SUCH ACTIONS ON THE FIDUCIARY’S BEHALF. 2. In addition to the requirements set forth in Arizona Rule of Civil Procedure 5.1, an attorney who has appeared in a probate case as counsel for record for a Page 48 of 432 guardian, conservator, personal representative, or trustee shall include with any motion to withdraw a status report that advises the court and parties of any issues pending in the probate case and informs the court and parties whether, to the best of the attorney’s knowledge, all required guardian reports, inventories, accountings, and other similar required reports have been filed. RULE 10.1 FIDUCIARY’S AUTHORITY TO FILE DOCUMENTS AND APPEAR IN COURT PROCEEDINGS WHEN REPRESENTED BY COUNSEL. A. NOTWITHSTANDING AN ATTORNEY HAVING APPEARED IN A PROBATE CASE ON BEHALF OF A FIDUCIARY, A FIDUCIARY WHO IS REPRESENTED BY AN ATTORNEY IN A PROBATE CASE MAY SIGN AND FILE DIRECTLY WITH THE COURT ANY DOCUMENT EXCEPT A MOTION, A PETITION, AN APPLICATION, OR A CLOSING STATEMENT. B. A FIDUCIARY WHO FILES A DOCUMENT DIRECTLY WITH THE COURT PURSUANT TO THIS RULE SHALL BE RESPONSIBLE FOR SERVING A COPY OF SUCH DOCUMENT UPON THOSE PERSONS WHO, BY STATUTE, COURT RULE, OR COURT ORDER, ARE ENTITLED TO RECEIVE A COPY OF THE DOCUMENT. THE FIDUCIARY MUST ALSO PROVIDE THE FIDUCIARY’S ATTORNEY WITH A COPY OF THE DOCUMENT FILED DIRECTLY WITH THE COURT. C. UPON MOTION BY A FIDUCIARY’S ATTORNEY OF RECORD, THE COURT MAY AUTHORIZE THE FIDUCIARY TO APPEAR WITHOUT LEGAL REPRESENTATION IN A PARTICULAR COURT PROCEEDING AND COMMUNICATE WITH ANY OPPOSING COUNSEL IN CONNECTION WITH THAT PROCEEDING. COMMENT THE COURT RECOGNIZES THAT FIDUCIARIES REPRESENTED BY COUNSEL MAY NOT NEED THE SERVICES OF COUNSEL TO FILE CERTAIN DOCUMENTS OR APPEAR IN CERTAIN COURT PROCEEDINGS. SOMETIMES, THE INVOLVEMENT OF COUNSEL IS UNNECESSARY AND CAN BE COSTLY TO AN ESTATE. RULE 10.1(C) PERMITS THE COURT TO AUTHORIZE THE FIDUCIARY TO APPEAR IN CERTAIN COURT PROCEEDINGS WITHOUT THE ATTORNEY OF RECORD UPON REQUEST BY THAT ATTORNEY. IT IS ANTICIPATED THAT SUCH REQUESTS WILL BE MADE FOR ROUTINE COURT Page 49 of 432 APPEARANCES THAT DO NOT CONCERN CONTESTED ISSUES. TO BE CLEAR, THIS RULE APPLIES ONLY TO COURT FILINGS AND APPEARANCES AND DOES NOT AUTHORIZE A FIDUCIARY TO DRAFT OTHER LEGAL DOCUMENTS, SUCH AS ESTATE PLANNING DOCUMENTS. WHEN A REPRESENTED FIDUCIARY APPEARS WITHOUT THE ATTORNEY OF RECORD PURSUANT TO THIS RULE, OTHER COUNSEL MAY COMMUNICATE WITH THE FIDUCIARY IN CONNECTION WITH THAT PROCEEDING ONLY WITHOUT VIOLATING THE ATTORNEY’S ETHICAL OBLIGATION MANDATED BY ARIZ. R. SUP. CT. 42, ER 4.2. RULE 15.1 APPOINTMENT OF GUARDIAN AD LITEM. A. A PARTY REQUESTING THE APPOINTMENT OF A GUARDIAN AD LITEM SHALL MAKE THE REQUEST IN A MOTION THAT SETS FORTH WHY THE APPOINTMENT IS NECESSARY OR ADVISABLE AND WHAT, IF ANY, SPECIAL EXPERTISE IS REQUIRED OF THE GUARDIAN AD LITEM. 18 B. THE ORDER APPOINTING A GUARDIAN AD LITEM PURSUANT TO THIS SECTION SHALL CLEARLY SET FORTH THE SCOPE OF THE APPOINTMENT, INCLUDING THE REASONS FOR AND DURATION OF THE APPOINTMENT, RIGHTS OF ACCESS AS AUTHORIZED BY THIS RULE, AND THE APPLICABLE TERMS OF COMPENSATION. C. UPON APPOINTING A GUARDIAN AD LITEM, THE COURT MAY ENTER AN ORDER AUTHORIZING THE GUARDIAN AD LITEM TO HAVE IMMEDIATE ACCESS TO THE PERSON FOR WHOM THE GUARIAN AD LITEM HAS BEEN APPOINTTED AND ALL MEDICAL AND FINANCIAL RECORDS PERTAINING TO SUCH PERSON, INCLUDING RECORDS AND INFORMATION THAT ARE OTHERWISE PRIVILEGED OR CONFIDENTIAL. UPON RECEIPT OF A CERTIFIED COPY OF SUCH ORDER, THE CUSTODIAN OF ANY RELEVANT RECORD RELATING TO A PERSON FOR WHOM A GUARDIAN AD LITEM HAS BEEN APPOINTED SHALL PROVIDE THE GUARDIAN AD LITEM WITH ACCESS TO SUCH RECORD AS AUTHORIZED BY THE COURT’S ORDER. Arizona Code of Judicial Administration Proposed Rule 15.1(A) repeats language in current Rule 18(B), which applies to appointments of guardians ad litem and counsel. If the supreme court promulgates Rule 15.1, it should amend Rule 18(B) to excise references to guardians ad litem. 18 Page 50 of 432 Part 7: Administrative Office of the Courts Chapter 2: Certification and Licensing Programs Section 7-202: Fiduciaries J. Code of Conduct. . . . . 1. [unchanged] 2. Ethics. The fiduciary shall exhibit the highest degree of trust, loyalty and fidelity in relation to the ward, protected person, or estate. a. – f. [unchanged] g. The fiduciary shall only prepare powers of attorney or other legal document, if also certified as a legal document preparer pursuant to ACJA § 7-208, except PERMITTED BY RULE 10.1, ARIZONA RULES OF PROBATE PROCEDURE, OR as ordered by the court. This provision does not apply to the Arizona Department of Veterans Services pursuant to A.R.S. § 41-603(A). Rules of the Supreme Court of Arizona Rule 31. Regulation of the Practice of Law (a) Supreme Court Jurisdiction Over the Practice of Law. .... .... (b) Authority to Practice. Except as hereinafter provided in section (d), no person shall practice law in this state or represent in any way that he or she may practice law in this state unless the person is an active member of the state bar. .... (d) Exemptions. Notwithstanding the provisions of section (b), but subject to the limitations of section (c) unless otherwise stated: Page 51 of 432 .... 30. AN OFFICER, MEMBER, OR EMPLOYEE OF A CORPORATION, LIMITED LIABILITY COMPANY, PUBLIC FIDUCIARY, OR THE ARIZONA DEPARTMENT OF VETERANS SERVICES THAT IS LICENSED AS A FIDUCIARY PURSUANT TO A.R.S. §14-5651, WHO IS NOT AN ACTIVE MEMBER OF THE STATE BAR MAY REPRESENT SUCH ENTITY BEFORE THE SUPERIOR COURT IN PROBATE PROCEEDINGS IF THE ENTITY IS NOT REPRESENTED BY COUNSEL OR TO THE EXTENT PERMITTED BY RULE 10.1, ARIZONA RULES OF PROBATE PROCEDURE, IF ALL THE FOLLOWING CONDITIONS ARE SATISFIED: (A) THE ENTITY AUTHORIZES THE OFFICER, MEMBER, OR EMPLOYEE TO REPRESENT IT IN THE PROCEEDINGS; (B) SUCH REPRESENTATION IS NOT THE OFFICER'S, MEMBER’S, OR EMPLOYEE'S PRIMARY DUTY TO THE ENTITY BUT SECONDARY OR INCIDENTAL TO OTHER DUTIES RELATED TO THE MANAGEMENT OR OPERATION OF THE ENTITY; AND (C) THE OFFICER, MEMBER, OR EMPLOYEE IS NOT RECEIVING SEPARATE OR ADDITIONAL COMPENSATION (OTHER THAN REIMBURSEMENT FOR COSTS) FOR SUCH REPRESENTATION; AND, SUCH OFFICER, MEMBER OR EMPLOYEE IS INDIVIDUALLY LICENSED AS A FIDUCIARY PURSUANT TO A.R.S. §14-5651. NOTWITHSTANDING THE FOREGOING PROVISION, THE COURT MAY REQUIRE REPRESENTATION BY AN ATTORNEY WHENEVER IT DETERMINES THAT LAY REPRESENTATION IS INTERFERING WITH THE ORDERLY PROGRESS OF THE PROCEEDINGS OR IMPOSING UNDUE BURDENS ON OTHER PARTIES. IN ADDITION, THE COURT MAY ASSESS AN APPROPRIATE SANCTION AGAINST ANY PARTY OR ATTORNEY WHO HAS ENGAGED IN UNREASONABLE, GROUNDLESS, ABUSIVE OR OBSTRUCTIONIST CONDUCT. 31. NOTHING IN THESE RULES SHALL PROHIBIT A PERSON LICENSED AS A FIDUCIARY PURSUANT TO A.R.S. § 14-5651 AND PERFORMING SERVICES IN COMPLIANCE WITH RULE 10.1, ARIZONA RULES OF PROBATE PROCEDURE, AND ARIZONA CODE OF JUDICIAL ADMINISTRATION, PART 7, CHAPTER 2, SECTION 7-202. THIS EXEMPTION IS NOT SUBJECT TO PARAGRAPH (C) OF THIS RULE AS LONG AS THE DISBARRED ATTORNEY OR MEMBER HAS BEEN LICENSED AS A FIDUCIARY PURSUANT TO A.R.S. § 14-5651 AND THE Page 52 of 432 ARIZONA CODE OF JUDICIAL ADMINISTRATION, PART 7, CHAPTER 2, SECTION 7-202. The Committee is informed that ACJA § 7-202 will undergo extensive amendment to address recent legislative enactments and any adoption by the supreme court of recommendations in this report. The supreme court may prefer to substantially address a licensed fiduciary’s ability to represent a fiduciary entity in court proceedings via ACJA § 7-202 rather than as an exemption in Rule 31, Rules of the Arizona Supreme Court. If so, the Committee recommends the following amendments to ACJA § 7-202 and Rule 31 in lieu of the proposed recommended amendments set forth immediately above. Arizona Code of Judicial Administration Part 7: Administrative Office of the Courts Chapter 2: Certification and Licensing Programs Section 7-202: Fiduciaries F. Role and Responsibilities of Fiduciaries. In addition to the requirements of ACJA § 7-201(F), the following requirements apply: 1. – 9. [unchanged] 10. A LICENSED FIDUCIARY IS AUTHORIZED TO: A. PREPARE LEGAL DOCUMENTS WITHOUT THE SUPERVISION OF AN ATTORNEY, AS AUTHORIZED BY RULE 10.1, ARIZONA RULES OF PROBATE PROCEDURE, OR B. REPRESENT THE LICENSED FIDUCIARY BUSINESS, OFFICE OF THE PUBLIC FIDUCIARY OR THE ARIZONA DEPARTMENT OF VETERANS’ SERVICES BEFORE THE SUPERIOR Page 53 of 432 COURT IN PROBATE PROCEEDINGS IF THE BUSINESS, OFFICE OR DEPARTMENT IS NOT REPRESENTED BY COUNSEL OR TO THE EXTENT PERMITTED BY RULE 10.1, ARIZONA RULES OF PROBATE PROCEDURE, IF ALL THE FOLLOWING CONDITIONS ARE SATISFIED: 1. THE ENTITY AUTHORIZES THE LICENSED FIDUCIARY TO REPRESENT IT IN THE PROCEEDINGS; 2. THE FIDUCIARY IS NOT RECEIVING SEPARATE OR ADDITIONAL COMPENSATION (OTHER THAN REIMBURSEMENT FOR COSTS) FOR SUCH REPRESENTATION;SUCH REPRESENTATION IS NOT THE OFFICER'S, MEMBER’S, OR EMPLOYEE'S PRIMARY DUTY TO THE ENTITY BUT SECONDARY OR INCIDENTAL TO OTHER DUTIES RELATED TO THE MANAGEMENT OR OPERATION OF THE ENTITY. J. Code of Conduct. . . . . 1. [no change] 2. Ethics. The fiduciary shall exhibit the highest degree of trust, loyalty and fidelity in relation to the ward, protected person, or estate. a. – f. [unchanged] g. The fiduciary shall only prepare powers of attorney or other legal documents, if also certified as a legal document preparer pursuant to ACJA § 7208, except PERMITTED BY RULE 10.1, ARIZONA RULES OF PROBATE PROCEDURE, OR as ordered by the court. This provision does not apply to the Arizona Department of Veterans Services pursuant to A.R.S. § 41-603(A). Rules of the Supreme Court of Arizona Rule 31. Regulation of the Practice of Law (a) Supreme Court Jurisdiction Over the Practice of Law. .... Page 54 of 432 (b) Authority to Practice. Except as hereinafter provided in section (d), no person shall practice law in this state or represent in any way that he or she may practice law in this state unless the person is an active member of the state bar. .... (d) Exemptions. Notwithstanding the provisions of section (b), but subject to the limitations of section (c) unless otherwise stated: .... 30. NOTHIING IN THESE RULES SHALL PROHIBIT A PERSON LICENSED AS A FIDUCIARY PURSUANT TO A.R.S. § 14-5651 AND PERFORMING SERVICES IN COMPLIANCE WITH RULE 10.1, ARIZONA RULES OF PROBATE PROCEDURE AND ARIZONA CODE OF JUDICIAL ADMINISTRATION, PART 7, CHAPTER 2, SECTION 7-202. THIS EXEMPTION IS NOT SUBJECT TO PARAGRAPH (C) OF THIS RULE AS LONG AS THE DISBARRED ATTORNEY OR MEMBER HAS BEEN LICENSED AS A FIDUCIARY PURSUANT TO A.R.S. § 14-5651 AND THE ARIZONA CODE OF JUDICIAL ADMINISTRATION, PART 7, CHAPTER 2, SECTION 7-202. NOTWITHSTANDING THE FOREGOING PROVISION, THE COURT MAY REQUIRE REPRESENTATION BY AN ATTORNEY WHENEVER IT DETERMINES THAT LAY REPRESENTATION IS INTERFERING WITH THE ORDERLY PROGRESS OF THE PROCEEDINGS OR IMPOSING UNDUE BURDENS ON OTHER PARTIES. IN ADDITION, THE COURT MAY ASSESS AN APPROPRIATE SANCTION AGAINST ANY PARTY OR ATTORNEY WHO HAS ENGAGED IN UNREASONABLE, GROUNDLESS, ABUSIVE OR OBSTRUCTIONIST CONDUCT. Recommendation M: The supreme court should form a focused task force to draft information for public distribution regarding key elements of the guardianship and conservatorship process, including the powers and duties of such fiduciaries. In most protective proceedings, family members serve as guardians or conservators to their loved ones. More often than not, these family members have Page 55 of 432 little or no education regarding the requirements for serving in these roles. This lack of knowledge can dissuade competent family members from taking on these roles and result in inconsistent adherence to legislative and court requirements. Also, parents of minors are often unaware of the need to obtain an adult guardianship or the mechanism for doing so until after the child becomes an adult and access to information is denied to the parent. Finally, even if a family member is not serving as guardian or conservator, they are often concerned with making sure their loved one is being protected correctly. Family members who would like to verify their loved one’s case is being handled correctly are often uninformed of the rules and requirements, and therefore they do not know what to expect from the process or how to raise concerns. The Committee recommends the supreme court form a focused task force to draft information for public distribution regarding key elements of the guardianship and conservatorship process, including the powers and duties of guardians and conservators. The information should be broken into discrete topics and presented via writings (hard copy and digital) and videos. Pima County used an excellent video in the 1980s, which walked lay people through the guardianship and conservatorship process. The Committee believes a statewide video or series of videos should be developed and posted on the Judicial Branch’s website as well as other pertinent websites maintained by other branches. Non-licensed persons Page 56 of 432 desiring to serve as fiduciaries should be required to view explanatory material before accepting an appointment to ensure their ability to comply with a fiduciary’s duties and to prepare them for the role. The task force should include members of the Executive Branch who deal with incapacitated children and elder care issues, members of the superior court, a representative of a non-profit organization providing outreach to families with incapacitated children or adults, one or more attorneys experienced in representing guardians, conservators, wards and protected persons, and a representative from the licensed fiduciary community. 19 Recommendation N: The supreme court should appoint a focused task force to develop automated case management systems together with uniform, interactive and dynamic electronic probate forms through AZTurboCourt. As previously mentioned, AJC referred Recommendations 7 and 8 in the Interim Report to COT for placement within the judiciary’s schedule of automation priorities. That matter remains pending before COT. Regardless of where these recommendations fall on the priority list, no reason exists to delay commencement of the pre-automation process. The Committee recommends the supreme court immediately appoint a focused task force to develop automated case management systems, including the triggers of risk indicators (see Interim Report, Appendix D), The Arizona Fiduciaries Association informed the Committee on several occasions that it is developing training materials for its members and would be happy to work with the supreme court to develop similar materials for lay fiduciaries. 19 Page 57 of 432 and create probate smart-forms for eventual use in AZTurboCourt. The task force should be comprised of persons experienced with modifying our existing case management systems and AZTurboCourt, and court administrators and judicial officers familiar with probate and the required forms. The Probate Projects Coordinator (see Recommendation D, p. 23) should oversee the task force and coordinate with COT. Recommendation O: The supreme court should amend the order to guardian, order to conservator, and order to guardian and conservator appended to Probate Rule 38 to require the fiduciary to send a copy of the order to certain classes of interested persons. During the Committee public comment process, several family members expressed concern about lacking information regarding the duties of a guardian or conservator. Consequently, they may not realize an issue exists that should be brought to the court’s attention. Form orders appended to Probate Rule 38 set forth duties of guardians and conservators and are issued to such persons upon their appointment. The Committee recommends amending these form orders to require fiduciaries to mail copies of orders to specified persons, including wards/protected persons and family members within guardianship/conservatorship are issued. 30 days after letters of These orders will provide valuable information to the recipients regarding the guardianship/conservatorship process. The recommended amended forms are set forth in Appendix G (Order to Page 58 of 432 Guardian), Appendix H (Order to Conservator), and Appendix I (Order to Guardian and Conservator) (additions to forms are highlighted). Recommendation P: The supreme court should amend Probate Rules 8 and 10 and add Rule 15.2 to authorize the superior court to dismiss Title 14 cases for lack of prosecution. Effective case management requires an understanding of how many court cases are subject to action or management at any given time. Civil and family court cases that are fully resolved by entry of judgment, decree or order of dismissal are routinely and efficiently removed from the court’s list of active cases to allow court administration and judicial officers to focus their attention on managing only active cases. Not infrequently, civil and family court cases are abandoned or are slow to progress for a variety of reasons ranging from a conscious desire to abandon the case to uncertainty in how to proceed. In these cases, the court is often not notified of the reason for the parties’ delay. Rule 38.1(d), Arizona Rules of Civil Procedure (“Civil Rules”), and Rules 46(B) and 91(R), Arizona Rules of Family Law Procedure (“Family Rules”), address this situation by creating an inactive calendar that places stagnant cases on a track to be dismissed after notice to the parties giving them an opportunity to proceed with the case if they desire. If no action is taken within the prescribed times, the case is dismissed by the court, and the court can focus its resources in managing the smaller universe of cases that remain active. Page 59 of 432 Mechanisms in other case types also exist to ensure that inactive cases are revitalized or dismissed. Criminal and juvenile court cases are generally scheduled for mandatory hearings immediately upon the filing of criminal, delinquency or dependency proceedings with the court, and these cases proceed from hearing to hearing until final disposition. Consequently, these cases are never dormant. Management of probate matters presents a hybrid case management system and commensurate case management difficulties. Structurally, informal and formal probates and intestacy administrations are like civil cases in some respects but different in others. These cases are filed with the clerk of court and, barring a contest or opposition, the petitioner or personal representative has the responsibility to seek appointment as personal representative, provide notice to heirs, notify and settle creditors’ claims, resolve tax issues, prepare an inventory and appraisement, collect and distribute assets, and close out the estate. By statutory design, the court has more limited oversight of informal proceedings, especially when waivers are executed. Oversight is increased when formal court authority is sought for various actions. Conversely, guardianship and conservatorship cases proceed more like criminal or juvenile cases with court oversight primarily occurring at annual accountings and reports from year to year. These cases routinely terminate with a final accounting and order of accountability if these final steps do not occur. Probate Rule 3(A) incorporates the Civil Rules Page 60 of 432 into Title 14 cases unless they are inconsistent or preempted by the Probate Rules. Presumptively, this would make Civil Rule 38.1(d) applicable to Title 14 cases, but it has never been consistently applied to Title 14 cases because Civil Rule 38.1(d) is driven by the civil requirement to file a motion to set and certificate of readiness within nine months of filing of the civil case; a procedure that generally has no clear corollary in Title 14 cases. For better case management, Title 14 cases need a common sense rule that fits within the unique procedures applicable to Title 14 cases of various kinds. The Committee recommends that the supreme court promulgate amendments to the Probate Rules as follows: Rule 8. Service of Court Papers. A. Whenever A.R.S. Title 14 requires the notice of a hearing or other document be served personally, service shall be conducted pursuant to rule 4(d), 4.1, and 4.2 of the Arizona Rules of Civil Procedure. B. IF SERVICE OF A NOTICE AND PETITION OR APPLICATION THAT COMMENCES A PROBATE CASE IS NOT MADE UPON ALL PERSONS REQUIRED IN THE MANNER PRESCRIBED BY A.R.S. TITLE 14 WITHIN 120 DAYS AFTER THE FILING OF THE INITIAL PETITION OR APPLICATION, THE COURT, UPON MOTION OR ITS OWN INITIATIVE AFTER NOTICE TO THE PETITIONER OR APPLICANT, MAY DISMISS THE PETITION OR APPLICATION WITHOUT PREJUDICE OR DIRECT THAT SERVICE BE EFFECTED WITHIN A SPECIFIED TIME; PROVIDED THAT IF THE PETITIONER OR APPLICANT SHOWS GOOD CAUSE FOR THE FAILURE PRIOR TO THE EXPIRATION OF TIME ALLOWED FOR SERVICE, THE COURT SHALL EXTEND THE TIME FOR SERVICE FOR AN APPROPRIATE PERIOD. Page 61 of 432 Rule 10. Duties Owed to the Court BY COUNSEL, FIDUCIARIES, UNREPRESENTED PARTIES, AND INVESTIGATORS A. [no change] B. [no change] C. Duties of Court-Appointed Fiduciaries. 1. [no change] 2. [no change] 3. [no change] 4. DUTIES REGARDING MINOR’S DEATH, ADOPTION, MARRIAGE OR EMANCIPATION. THE COURT-APPOINTED GUARDIAN OF A MINOR WARD WHO IS ADOPTED, MARRIES OR BECOMES EMANCIPATED SHALL NOTIFY THE COURT IN WRITING WITHIN TEN DAYS OF SUCH EVENT. IF THE MINOR DOES NOT HAVE A CONSERVATOR AT THE TIME THE GUARDIANSHIP TERMINATES, THE GUARDIAN SHALL PROVIDE THE COURT AND FORMER MINOR WARD WITH A WRITTEN LIST OF ANY KNOWN ASSETS OR MONIES BEYOND PERSONAL EFFECTS BELIEVED TO BE OWNED BY THE FORMER MINOR WARD. 20 RULE 15.2. INVOLUNTARY TERMINATION OF APPOINTMENT; OTHER REMEDIES FOR NON-COMPLIANCE; DISMISSAL; SANCTIONS. A. DISMISSAL OF PROBATE, SPECIAL ADMINISTRATION OR SUBSEQUENT ADMINISTRATION PROCEEDINGS FOR LACK OF PROSECUTION. 1. TWO YEARS AFTER INITIATION OF A CASE FILED PURSUANT TO TITLE 14, CHAPTER 3, A.R.S., THE COURT SHALL ISSUE A NOTICE OF IMPENDING DISMISSAL OF THE CASE UNLESS AT LEAST ONE OF THE FOLLOWING HAS BEEN FILED IN THE CASE: a. A CLOSING STATEMENT AUTHORIZED BY §14-3933; b. A PETITION TO SETTLE THE ESTATE AUTHORIZED BY §§14-3931, AND -3932; Upon the effective date of this amendment to Rule 10, the court should also modify the order to guardian to remove language requiring production of such a list only “if requested.” 20 Page 62 of 432 c. AN ORDER TERMINATING THE APPOINTMENT OF A SPECIAL ADMINISTRATOR PURSUANT TO §14-3618; d. AN ORDER SETTING THE CASE FOR FUTURE TRIAL, HEARING, OR CONFERENCE OR AN ORDER EXTENDING THE ADMINISTRATION OF THE ESTATE BEYOND TWO YEARS. 2. THE CLERK OF THE COURT OR COURT ADMINISTRATOR, WHOEVER IS DESIGNATED BY THE PRESIDING JUDGE, SHALL PROMPTLY NOTIFY PARTIES, PERSONS WHO HAVE FILED A DEMAND FOR NOTICE, AND DISTRIBUTEES OF THE IMPENDING DISMISSAL OF THE CASE. AT THE EXPIRATION OF 90 DAYS AFTER ISSUANCE OF THE NOTICE, THE COURT SHALL DISMISS THE CASE WITHOUT PREJUDICE AND TERMINATE THE APPOINTMENT OF THE PERSONAL REPRESENTATIVE OR SPECIAL ADMINISTRATOR WITHOUT A HEARING UNLESS AT LEAST ONE OF THE FOLLOWING HAS BEEN FILED IN THE CASE: a. ANY OF THE FOUR DOCUMENTS DESCRIBED ABOVE; b. A REQUEST FOR HEARING OR CONFERENCE; c. A PETITION TO TERMINATE THE APPOINTMENT OF THE PERSONAL REPRESENTATIVE OR SPECIAL ADMINISTRATOR; d. A STATUS REPORT DESCRIBING MATTERS THAT REMAIN TO BE RESOLVED. ANY TERMINATION OF THE APPOINTMENT OF THE PERSONAL REPRESENTATIVE OR SPECIAL ADMINISTRATOR UNDER THIS RULE SHALL NOT DISCHARGE THE FIDUCIARY FROM LIABILITY OR EXONERATE ANY BOND. THE COURT MAY EXTEND THE PERIODS SET FORTH IN THIS RULE PRIOR TO THEIR EXPIRATION FOR GOOD CAUSE SHOWN. FOR PURPOSES OF THIS SUBSECTION, “DISTRIBUTEES” MEANS HEIRS IN INTESTATE ESTATES AND DEVISEES IN A TESTATE ESTATE. Page 63 of 432 B. TERMINATION OF A MINOR GUARDIANSHIP CASE. CONSISTENT WITH THE PROVISIONS OF A.R.S. § 14-5210, THE CLERK OF THE COURT OR COURT ADMINISTRATOR, WHOEVER IS DESIGNATED BY THE PRESIDING JUDGE, SHALL CLOSE A MINOR GUARDIANSHIP CASE FILED PURSUANT TO §§ 14-5201 TO -5212 UPON THE MINOR REACHING THE AGE OF MAJORITY, THE MINOR’S ADOPTION, MARRIAGE, EMANCIPATION, OR DEATH. IF THE COURT HAS REASON TO BELIEVE THAT THE MINOR HAS A DISABILITY OR IMPAIRMENT THAT MAY NECESSITATE THE APPOINTMENT OF A GUARDIAN AFTER THE MINOR’S EIGHTEENTH BIRTHDAY, AND A PETITION HAS NOT BEEN FILED PURSUANT TO A.R.S. § 14-5303, THE COURT SHALL SET A STATUS HEARING NOT LESS THAN 90 DAYS PRIOR TO THE MINOR’S EIGHTEENTH BIRTHDAY TO DETERMINE WHETHER A PETITION FOR APPOINTMENT OF A GUARDIAN FOR AN ADULT SHOULD BE FILED. C. REMEDIES FOR NON-COMPLIANCE BY A GUARDIAN OR CONSERVATOR FOR AN ADULT. IN THE EVENT A GUARDIAN OR CONSERVATOR FAILS TO COMPLY WITH ANY REQUIREMENTS OF A.R.S. TITLE 14, COURT RULES, OR A COURT ORDER, THE COURT MAY ENTER ANY ORDER APPROPRIATELY DESIGNED TO ENSURE COMPLIANCE WITH LEGAL REQUIREMENTS OR PROTECT THE BEST INTEREST OF THE WARD OR PROTECTED PERSON, INCLUDING: 1. ORDER THE GUARDIAN OR CONSERVATOR TO COMPLY WITHIN A TIME CERTAIN; 2. ISSUE AN ORDER TO SHOW CAUSE PURSUANT TO RULE 35 REQUIRING THE GUARDIAN OR CONSERVATOR TO SHOW CAUSE WHY APPROPRIATE ACTIONS SHOULD NOT BE TAKEN BY THE COURT; 3. APPOINT A COURT INVESTIGATOR TO INVESTIGATE THE REASONS FOR THE GUARDIAN’S OR CONSERVATOR’S NONCOMPLIANCE AND REPORT TO THE COURT REGARDING THE INVESTIGATOR'S FINDINGS AND PROPOSED RECOMMENDATIONS; 4. TERMINATE THE GUARDIANSHIP OR CONSERVATORSHIP PROCEEDING IF THE COURT DETERMINES THAT DISMISSAL IS APPROPRIATE. THE COURT SHALL NOT TERMINATE A GUARDIANSHIP OR CONSERVATORSHIP CASE IF THE COURT HAS Page 64 of 432 REASON TO BELIEVE THE WARD REMAINS INCAPACITATED OR THE PROTECTED PERSON REMAINS IN NEED OF PROTECTION AND SUCH PERSON CONTINUES TO RESIDE IN ARIZONA; OR, 5. IMMEDIATELY SUSPEND OR TERMINATE THE AUTHORITY OF THE GUARDIAN OR CONSERVATOR TO TAKE ANY FURTHER ACTION ON BEHALF OF THE WARD OR THE ESTATE AND APPOINT A SUCCESSOR OR TEMPORARY FIDUCIARY; 6. INITIATE PROCEEDINGS THAT MAY RESULT IN ISSUANCE OF A FIDUCIARY ARREST WARRANT PURSUANT TO A.R.S. § 14-5701; OR 7. ENTER SUCH OTHER ORDER AS MAY BE APPROPRIATE IN THE CIRCUMSTANCES OF THE CASE. D. GENERAL INVOLUNTARY TERMINATION. IF NO ACTION OR HEARING OCCURS FOR A PERIOD OF SIX MONTHS AFTER A CASE IS INITATED UNDER A.R.S. TITLE 14, THE COURT SHALL ISSUE A NOTICE THAT THE CASE WILL BE ADMINISTRATIVELY TERMINATED IN 90 DAYS WITHOUT HEARING, UNLESS BEFORE THAT DATE THE INITIATING PARTY FILES WITH THE COURT A REQUEST FOR ACTION OR A STATUS REPORT THAT DESCRIBES MATTERS REMAINING FOR RESOLUTION. THE NOTICE SHALL BE PROVIDED TO ALL PARTIES, PERSONS ENTITLED TO NOTICE OF THE COMMENCEMENT OF THE CASE, AND ANY PERSON WHO FILED A DEMAND FOR NOTICE. E. EFFECT OF DISMISSAL. UNLESS OTHERWISE ORDERED BY THE COURT, THE ENTRY OF AN ORDER DISMISSING A CASE SERVES TO DISMISS ALL PENDING MATTERS IN THE CASE WITHOUT PREJUDICE BUT DOES NOT DISMISS, VACATE, OR SET ASIDE ANY FINAL ORDER APPROVING ACCOUNTINGS OR APPROVING OTHER ACTIONS OF A PERSON APPOINTED PURSUANT TO A.R.S TITLE 14. F. DISMISSAL AUTHORITY. THE AUTHORITY OF THE COURT TO ISSUE NOTICES, DISMISS CASES AND TERMINATE APPOINTMENTS UNDER THIS RULE MAY BE PERFORMED BY COURT ADMINISTRATION OR BY AN APPROPRIATE ELECTRONIC PROCESS UNDER SUPERVISION OF THE COURT. Page 65 of 432 NOTE: Proposed Probate Rule 15.2(A)(2) requires the clerk of the court to provide the notice of impending dismissal to devisees. Identifying devisees may be difficult for a clerk of the court. If the supreme court agrees that the clerk should send notices to devisees, the court should ensure that clerks have the means to readily identify these persons. Recommendation Q: The supreme court should ask the legislature in the 2012 term to enact legislation requiring prospective guardians and conservators for adults and prospective personal representatives in formal probates to submit to background and credit checks. Judicial officers report a lack of pertinent information concerning prospective guardians and conservators for adults and personal representatives in formal probates; such information is important to know to ensure that trustworthy persons serve in fiduciary positions to vulnerable persons or estates. Licensed fiduciaries and non-family-member fiduciaries for minors must agree to a credit check and background check as a precursor to appointment. Non-licensed fiduciaries for adults and personal representatives in formal probate are not required to undergo these checks. Section 14-5106, A.R.S., requires prospective guardians and conservators to disclose pertinent information, including whether the person has been convicted of a felony. Oftentimes, prospective guardians/conservators falsely claim they have never committed crimes; the court currently has no mechanism for discovering Page 66 of 432 such misrepresentations. The prospective guardian/conservator is not required to disclose a prior bankruptcy filing. Also, fiduciaries sometimes file for bankruptcy protection or commit crimes after appointment; the court does not learn of these subsequent events. Clearly, the court should know if a prospective fiduciary had been convicted, for example, of fraud before appointing that person as a conservator for an adult. Similarly, in providing oversight to a conservatorship, the court should know if a conservator has filed for personal or professional bankruptcy, which may indicate the conservatorship should be more closely monitored. Prospective personal representatives in formal probates are not required to disclose any information before appointment, which creates a risk that the court will appoint an unsuitable person for the position. The Committee recommends that the supreme court ask the legislature to require prospective guardians and conservators for adults and prospective personal representatives in formal probates to submit to background and credit checks as a condition for appointment. Additionally, the law should authorize the court to conduct periodic updated checks post-appointment. Upon enactment of such legislation, the court should promulgate a rule directing whether such postappointment checks should be conducted periodically in every case (for example, every three years) or only when ordered by the court. Finally, any rule should also require guardians and conservators for adults and personal representatives in Page 67 of 432 formal probates to immediately inform the court if they are convicted of a felony or if the fiduciary files for personal or professional bankruptcy protection. The supreme court should impose a fee on prospective fiduciaries for conducting background checks. Currently, the fee imposed on licensed fiduciaries and non-family-member fiduciaries for minors is $26 in Maricopa County. Many counties already use credit checking agencies and can conduct the required credit checks at no additional cost. AOC also has such access and may be able to conduct checks for counties without credit checking agency assistance. Recommendation R: The supreme court should promulgate Probate Rules that ensure the viability of restricted assets. Arizona courts do not consistently require proof of the status and correct titling of restricted accounts and other assets in estates. As a result, particularly with long-lasting conservatorships, sometimes restrictions are forgotten and assets dispersed or encumbered. For example, on numerous occasions, bank employees have wrongfully released a protected person’s funds to a conservator upon presentation of an appointment order, not realizing that restrictions existed in letters issued by the court after the bond had posted. Although remedies exist for unauthorized releases of restricted assets, 21 the better course of action is to require timely confirmation that repositories of If the order appointing the fiduciary restricts the fiduciary’s authority over estate assets, a financial institution may be required to repay wrongfully released funds. 21 Page 68 of 432 restricted assets are aware of the restrictions and require notice to third parties of any restrictions on real property. The Committee therefore recommends that the supreme court amend Probate Rules 22 and 26 as follows: Rule 22. ORDERS APPOINTING CONSERVATORS, GUARDIANS, AND PERSONAL REPRESENTATIVES; Bonds and Bond Companies; RESTRICTED ASSETS A. ORDERS. Every order appointing a conservator or a personal representative shall plainly state the amount of bond required. Neither letters of conservator nor letters of personal representative shall be issued to any person until any required bond has been has filed with the clerk of court. EVERY ORDER APPOINTING A CONSERVATOR, GUARDIAN, OR PERSONAL REPRESENTATIVE SHALL INCLUDE THE FOLLOWING LANGUAGE: “WARNING: THIS APPOINTMENT IS NOT EFFECTIVE UNTIL THE LETTERS OF APPOINTMENT HAVE BEEN ISSUED BY THE CLERK OF THE SUPERIOR COURT.” B. BONDS. Each fiduciary bond filed with the clerk of court shall state on the bond or on an attachment to the bond the name and address of the bonding company's statutory agent or other person authorized to accept service of process for the bonding company in the State of Arizona. The bonding company shall promptly notify the clerk of court of any change in the company's statutory agent or in the statutory agent's address. C. RESTRICTED ACCOUNTS 1. EVERY ORDER APPOINTING A CONSERVATOR OR PERSONAL REPRESENTATIVE, OR THAT AUTHORIZES A SINGLE TRANSACTION OR OTHER PROTECTIVE ARRANGEMENT PURSUANT TO A.R.S. §145409, SHALL PLAINLY STATE ANY RESTRICTIONS ON THE FIDUCIARY’S AUTHORITY TO MANAGE MONETARY ASSETS OF THE ESTATE. Page 69 of 432 2. IF THE RESTRICTION AFFECTS THE FIDUCIARY’S ABILITY TO MANAGE MONETARY ASSETS OF THE ESTATE, THE ORDER AND, UNLESS OTHERWISE ORDERED BY THE COURT, ANY LETTERS THAT ISSUE SHALL CONTAIN THE FOLLOWING LANGUAGE: “FUNDS SHALL BE DEPOSITED INTO AN INTEREST-BEARING, FEDERALLY INSURED RESTRICTED ACCOUNT AT A FINANCIAL INSTITUTION ENGAGED IN BUSINESS IN ARIZONA. NO WITHDRAWALS OF PRINCIPAL OR INTEREST MAY BE MADE WITHOUT CERTIFIED ORDER OF THE SUPERIOR COURT. UNLESS OTHERWISE ORDERED BY THE COURT, REINVESTMENT MAY BE MADE WITHOUT FURTHER COURT ORDER SO LONG AS FUNDS REMAIN INSURED AND RESTRICTED IN THIS INSTITUTION AT THIS BRANCH.” 3. UNLESS OTHERWISE ORDERED BY THE COURT, THE FIDUCIARY SHALL FILE A PROOF OF RESTRICTED ACCOUNT FOR EVERY ACCOUNT ORDERED RESTRICTED BY THE COURT WITHIN 30 DAYS AFTER THE ORDER OR LETTERS, WHETHER TEMPORARY OR PERMANENT, ARE FIRST ISSUED. 4. UNLESS OTHERWISE ORDERED BY THE COURT, AN ATTORNEY WHO REPRESENTS THE FIDUCIARY, THE WARD, PROTECTED PERSON, OR INSURANCE COMPANY AND WHO IS THE RECIPIENT OF ANY PROCEEDS TO BE RESTRICTED FOR THE BENEFIT OF A MINOR, INCAPACITATED PERSON OR PROTECTED PERSON, SHALL ENSURE THE ESTABLISHMENT OF THE RESTRICTED ACCOUNT, PROPER TITLING OF THE SAME, AND SAFE DEPOSIT OF THE RESTRICTED FUNDS. THE ATTORNEY SHALL FILE A PROPERLY EXECUTED PROOF OF RESTRICTED ACCOUNT FORM EXECUTED BY AN AUTHORIZED REPRESENTATIVE OF THE FINANCIAL INSTITUTION WITHIN 30 DAYS AFTER THE ISSUANCE OF LETTERS OR ENTRY OF A SINGLE TRANSACTION ORDER. D. RESTRICTED REAL PROPERTY 1. EVERY ORDER APPOINTING A CONSERVATOR OR A PERSONAL REPRESENTATIVE, OR THAT AUTHORIZES A SINGLE TRANSACTION Page 70 of 432 OR OTHER PROTECTIVE ARRANGEMENT PURSUANT TO A.R.S. §145409, SHALL PLAINLY STATE ANY RESTRICTIONS ON THE AUTHORITY TO SELL, LEASE, ENCUMBER OR CONVEY REAL PROPERTY OF THE ESTATE. NEITHER LETTERS OF CONSERVATOR NOR PERSONAL REPRESENTATIVE SHALL BE ISSUED BY THE CLERK OF THE COURT TO ANY PERSON UNLESS THE LANGUAGE RESTRICTING THE FIDUCIARY’S AUTHORITY IS CONTAINED IN THE LETTERS. 2. IF THE RESTRICTION LIMITS THE FIDUCIARY’S AUTHORITY TO MANAGE REAL PROPERTY, THE ORDER APPOINTING THE CONSERVATOR OR PERSONAL REPRESENTATIVE, OR THAT AUTHORIZES OR RATIFIES THE TRANSACTION SHALL CONTAIN THE FOLLOWING LANGUAGE: “NO REALTY SHALL BE LEASED FOR MORE THAN ONE YEAR, SOLD, ENCUMBERED OR CONVEYED WITHOUT PRIOR COURT ORDER.” Rule 26. Issuance AND RECORDING of Letters A. [unchanged] B. Any restrictions on the authority of the fiduciary to act shall be reflected in the letters issued. IF THE COURT RESTRICTS THE AUTHORITY OF A CONSERVATOR, GUARDIAN OR PERSONAL REPRESENTATIVE, THE CLERK OF THE COURT SHALL NOT ISSUE LETTERS OF CONSERVATOR, GUARDIAN, OR PERSONAL REPRESENTATIVE UNLESS THE LANGUAGE RESTRICTING THE FIDUCIARY’S AUTHORITY IN THE COURT’S ORDER IS CONTAINED IN THE LETTERS OF APPOINTMENT. C. [unchanged] D. [unchanged] E. PURSUANT TO A.R.S. § 14-5421, A CONSERVATOR SHALL FILE AND RECORD A CERTIFIED COPY OF THE LETTERS WITH THE OFFICE OF THE COUNTY RECORDER IN ALL COUNTIES WHERE THE ESTATE OWNS REAL PROPERTY. THE CONSERVATOR SHALL ALSO FILE A Page 71 of 432 COPY OF THE RECORDED LETTERS WITH THE COURT WITHIN 30 DAYS AFTER ISSUANCE OF THE CONSERVATOR’S LETTERS. Finally, the Committee recommends that the supreme court amend Probate Rule 38 to add a “Proof of Restricted Account From Financial Institution” form for use in conjunction with Probate Rule 22. The Committee recommends use of the form set forth in Appendix J. 3. Notice of Other Issues (a) Allowing probate attorneys to serve as judges pro tem in probate matters. The Committee received comments that probate attorneys sometimes also serve as judges pro tem in probate matters. As a result, concern was expressed that an attorney in a contested probate matter may feel constrained to vigorously argue against opposing counsel who also serves as a pro tem judge for fear it may affect the outcome of a future case decided by that person in a pro tem capacity. It was also suggested that attorneys who also serve as part-time pro tem judges may develop closer relationships with judicial officers, thereby leading to potentially improper communications. Attorneys are regularly used as pro tem judges in a variety of matters in all types of superior court cases. Proponents of the use of pro tem judges in Title 14 cases point out that the court needs pro tem judges to keep Page 72 of 432 pace with probate matters, and the most effective pro tem judges are attorneys experienced in probate. 22 The superior court’s use of probate attorneys as pro tem judges is permissible under the rules promulgated by the supreme court. Rule 81, ACJA, Application D, establishes standards of conduct for pro tem judges, including regulation of the appearance of attorneys in specialized court divisions like probate. “Those provisions exist to ‘allow the greatest possible use of part-time pro tempore judges . . . while minimizing any potential for the appearance of impropriety.’” Kay S. v. Mark S., 213 Ariz. 373, 378, ¶ 24, 142 P.3d 249, 254 (App. 2006) (citation omitted). Rule 81, ACJA, Application D(3), provides that “[a] pro tempore part-time judge who serves once or only sporadically in a specialized division of a court or in a court without specialized divisions may appear as a lawyer in such specialized division or court during such service.” According to the supreme court’s Judicial Ethics Advisory Committee, “sporadic” means “‘at irregular intervals,’” and implies “infrequent” service. Kay S., 213 Ariz. at 378-79, ¶ 28, 142 P.3d at 254-55 (citation omitted). Rule 81, ACJA, Application D(4), states that an attorney who serves “repeatedly on a continuing scheduled basis” as a pro tem judge in the specialized division cannot also appear Desire for such expertise is not unique. See ACJA. § 1-306(B)(1)(c) (requiring attorney pro tem judges in tax court matters to have “education and experience practicing in the area of taxation during the five years preceding the appointment.”). 22 Page 73 of 432 as an attorney in the division during that term of service. The Committee has not received any indication that the superior court uses part-time pro tem judges in probate divisions more than sporadically. The Committee does not discern a need for new rules to guard against inappropriate contact between part-time pro tem judges and full-time judicial officers. Ethical rules in place for attorneys and judicial officers prohibit ex parte communications between the two while court matters are pending that involve both parties. See Ariz. R. Sup. Ct. 42, ER 3.5(B); Ariz. R. Sup. Ct. 81, Rule 2.9. Assuming the rule is violated, the matter can be raised in the context of a particular case. Indeed, any party can seek disqualification of a pro tem judge or full-time judge on the basis of an actual or perceived conflict of interest; any ruling is subject to appellate review. See, e.g., Kay S., 213 Ariz. 373, 142 P.3d 249 (deciding propriety of court’s refusal to disqualify judge in dissolution case after wife learned husband’s attorney had been serving as judge pro tem in same family law division). The Committee was not charged with responsibility to investigate the use of pro tem judges in any particular case, was not equipped to do so, and has not done so. Additionally, the Committee did not consider the propriety of the generally accepted principle that courts may use attorneys as pro tem judges to assist in handling the court’s caseload. In its review of existing court rules, the Page 74 of 432 Committee concludes no further rules are needed to govern the superior court’s use of attorneys as pro tem judges in Title 14 cases on a limited, as-needed basis. (b) Using court commissioners to decide probate matters. The Committee received comments suggesting only regularly appointed or elected judges should decide probate cases in light of the importance of the issues. The superior court uses commissioners in many types of cases, including probate, to assure the efficient flow of cases. The Committee was not charged with responsibility to investigate the qualities and expertise of particular judicial officers, was not equipped to do so, and has not done so. It is for the supreme court and the particular county courts to decide the manner of court staffing. From the Committee’s perspective, what is important is that all judicial officers – judges and commissioners – are trained to effectively decide probate cases. For this reason, the Committee reports the issue but makes no recommendations regarding it. C. Fees Paid to Fiduciaries and Attorneys from Estates 1. Assessment Arizona law and due process requirements mandate that an attorney be appointed to represent any adult for whom a guardianship or conservatorship appointment is sought. 23 In some instances, the petition seeking appointment of a 23 See A.R.S. §§ 14-5303(C), 14-5401.01(C), 14-5707. Page 75 of 432 guardian or conservator nominates a licensed fiduciary to serve in this capacity. In addition, a fiduciary may retain an attorney to provide legal advice when the fiduciary serves as guardian, conservator, or personal representative. Attorneys and fiduciaries are entitled to reasonable compensation for their services. The Committee identified the following issues regarding the judiciary’s ability to prevent expenditure of excessive fees from a ward’s or protected person’s estate: (a) Fees are usually reviewed and approved by the court after expenditures have occurred; no mechanism exists to pre-approve a maximum fee, hourly rates, or set a range of permissible fees. When the fiduciary submits the annual account, a judicial officer typically approves and/or disapproves fiduciary fees, and fees incurred by the fiduciary’s attorney, the court-appointed attorney, and the guardian ad litem, which are all paid from the estate. In some cases, there may be significant expenditures from an estate before a judicial officer reviews the account. (b) Any interested person may object to fees paid to anyone out of the estate. Because proceedings to consider the objection may further unreasonably deplete estate assets, however, many objections are not raised to the court. Typically, fee petitions are scheduled for approval by the court on a nonappearance calendar, which means no party needs to appear at the hearing. Page 76 of 432 Probate Rule 12. Unless the court receives an objection to the fees prior to the scheduled hearing date, the court will review the fees for reasonableness and enter an order accordingly. Even in the few counties that have court accountants to review annual accountings that reflect fee expenditures, these accountants do not assist the judicial officers in reviewing fees. (c) Disputes over fees can be time consuming and costly, resulting in expenditures of significant fees by fiduciaries and attorneys that are typically charged to an estate. Alternatives to the current procedure are needed to provide for the timely and efficient resolution of fee disputes. (d) There is no time limitation governing when fee requests can be submitted or approved, which can prevent a judicial officer from receiving accurate information about what expenses are being incurred by an estate. For example, an attorney may submit a fee request for approval by the fiduciary or court years after services were performed. (e) No statewide guidelines exist to assist judicial officers in reviewing annual accounts and fee petitions to determine the reasonableness of fees charged. (f) Third parties can pursue a course of action that does not directly benefit the ward or protected person but nevertheless can result in significant costs to that person’s estate. For example, family members can make unreasonable demands on the fiduciary or repeat reasonable requests through daily telephone Page 77 of 432 calls. As another example, some family members reportedly initiate court proceedings solely or primarily to preserve an inheritance. In such cases, the estate typically bears the costs of the fiduciary and the fiduciary’s attorney. (g) On occasion, a good faith dispute arises between the fiduciary and third parties, such as family members, regarding a variety of matters. The cost of resolving such disputes in court, however, can drain the estate. Although alternative dispute resolution (“ADR”) tools are available to an extent, barriers exist to their use. For example, many courts have a limited availability of resources to conduct settlement conferences, and parties and judicial officers are not familiar with available ADR tools in probate matters, such as short trials. Additionally, no mechanism currently exists to mandate cost-saving dispute resolution methods such as binding arbitration or summary trial. 2. Actions Taken On October 21, 2010, the AJC approved or otherwise acted on the following recommendations made by the Committee in its Interim Report: Recommendation 9: The supreme court should adopt statewide fee guidelines for attorneys and fiduciaries paid from an estate. Administrative Order No. 2010-52 required the Committee to “develop statewide fee guidelines for professional fiduciaries and court-appointed attorneys in probate matters.” The Chief Justice orally clarified upon inquiry by the Committee Chair that “court-appointed attorneys” include any attorneys paid from Page 78 of 432 the estate of a ward or protected person. The Committee had not prepared recommended guidelines by the time of the interim report; therefore, no action was taken. The Committee has since developed statewide, uniform guidelines for all Title 14 cases. See Recommendation X, p. 102. Recommendation 10: The supreme court should add a Probate Rule or ask the legislature to include a statutory provision in the probate code, that requires attorneys, fiduciaries and others seeking fees from an estate in guardianship or conservatorship cases to do so within a specific time frame or be barred from doing so, absent good cause. AJC agreed with this recommendation and asked the Committee move forward with developing a time frame for attorneys, fiduciaries, and others to seek fees from an estate. The Committee worked with members of the legislature regarding this issue, which culminated in the enactment of SB 1499. As a result, A.R.S. § 14-5110 now requires attorneys and guardians ad litem who intend to be paid by the ward or protected person’s estate to submit a claim to the fiduciary within four months of rendering the service, incurring the cost, or being appointed, whichever is later, unless another deadline is set by the court. See Appendix E. Recommendation 11: The supreme court should ask the legislature to adopt a fee-shifting statute specifically applicable to probate matters. The court should also promulgate a corresponding Probate Rule. After extended discussion regarding the various iterations of a potential feeshifting statute, AJC deferred voting on the recommendation at the October 2010 Page 79 of 432 meeting and asked the Committee to present options to AJC at its March 2011 meeting. After the October meeting, members of the Arizona Legislature solicited input from various groups, including the supreme court and the Committee, concerning a package of probate-related legislation that included many of the issues under consideration by the Committee, including a fee-shifting statute. Therefore, Committee members worked with the supreme court’s legislative liaison, members of the Arizona Legislature, and interest group representatives regarding legislation. Ultimately, the legislature enacted SB 1499 (Appendix E), which has an effective date from and after December 31, 2011. In pertinent part, SB 1499 authorizes the court to order a person who engages in unreasonable conduct to reimburse the estate of a ward, protected person, decedent, or trust for any professional fees or expenses incurred as a result of such conduct. A.R.S. § 14-1104. See Appendix E. Recommendation 12: The supreme court should ask the legislature to adopt a statute mandating arbitration for disputes concerning the reasonableness of fees of fiduciaries and all attorneys paid from the estate. After extended discussion, AJC asked the Committee to defer consideration of this recommendation and raise it at a future AJC meeting. Thereafter, the legislature enacted SB 1499, which grants the court discretion to require arbitration of a dispute pursuant to existing arbitration statutes, A.R.S. § 12-133,(B) – (K), or order other methods of alternative dispute resolution. See Appendix E. Page 80 of 432 3. Additional Recommendations Recommendation S: The supreme court should adopt a holistic approach to court oversight of Title 14 cases in order to minimize incurrence of unnecessary fees and expenses and further the best interest of the ward or protected person. The Committee identified many causes that give rise to fee disputes and interfere with the trusting relationship between a fiduciary and a ward/protected person in guardianship and conservatorship cases, including but not limited to the following: 1. Differing expectations on the prudent management of costs; 2. Anticipated costs outweighing probable benefits; 3. Lack of transparency concerning expected compensation, prevailing market rates for compensation, and relative qualifications of professional services in the marketplace; 4. Surprises about the magnitude of aggregate fees and costs, which interested parties or the court did not anticipate before expenses were incurred; 5. Lack of budgeting or disclosure of budgets; 6. Appearance of conflict in attorney-client relationships when an attorney represents a fiduciary in one protective proceeding but is opposing counsel in another proceeding; 7. Lack of counsel to adequately advocate for protected person following appointment of a conservator, particularly regarding fees and expenses; 8. Lack of common reference points to determine whether fees are reasonable, including common standards on what time or expenses are compensable; 9. Annual accounting forms that are neither uniform nor particularly useful to spot trends, anticipate future shortfalls, or evaluate the fiduciary’s performance; Page 81 of 432 10. Persons engaging in unreasonable conduct in Title 14 proceedings do not reimburse the fees or costs incurred by the ward, protected person, decedent’s estate, or trust as a result of such conduct; 11. Existing fiduciary removal statutes can result in contested proceedings that are contrary to the best interests of the ward or protected person; and, 12. Lack of probate training or experience among judicial officers, attorneys and non-licensed fiduciaries, can increase costs or frustrate the best interests of incapacitated and vulnerable persons. After extensive study, the Committee concluded that adoption of rigid fee guidelines would not improve judicial oversight of Title 14 cases without creating new and serious problems, such as increased administrative costs, diminished quality of professional services, or underserved populations. For these reasons, the Committee recommends a holistic approach to oversight that, in addition to statewide uniform fee guidelines, considers a number of factors designed to maximize the prudent management of costs. In working with members of the legislature, the Committee recommended several provisions that further the holistic approach to prudent management of costs and maintenance of trusting relationships in Title 14 cases, which the legislature adopted in SB 1499. See A.R.S. §§ 14-1104 (requiring persons paid from estate to prudently manage costs, engage in cost-benefit analyses, and consider market rates for fiduciary and attorney services); 14 -1109 (authorizing court to summarily deny repetitive motion/petition without awaiting response); 145109 (mandating disclosure of basis for compensation paid from estate and Page 82 of 432 requiring compensation be reasonable and necessary as assessed by enumerated factors); 14-5110 (setting claim deadline for compensation from estates); 14-5307 (authorizing substitution of a guardian even if no wrongdoing if in the ward’s best interest); 14-5308(F) (prohibiting investigator, or a person or entity closely related to the investigator, from serving as a fiduciary, attorney, or professional in the same case or for the subject person, absent order of court); 14-5415 (authorizing substitution of a conservator even if no wrongdoing if in protected person’s best interest); 14-5418 (requiring conservator to periodically permit protected person and others to view financial records related to the protected person’s estate); 145651 (A)(3) (requiring provision of licensing and oversight information to the ward, protected person, and others); 14-10706 (D) (authorizing substitution of trustee upon request by beneficiary who is also the settler of the trust). The additional recommendations that follow complete this holistic approach and, in the Committee’s view, provide improved tools for judicial oversight while retaining flexibility to ensure that the court’s limited resources are appropriately focused on cases in need of more oversight while cases needing less oversight are spared from adhering to unnecessary and potentially expensive requirements. Recommendation T: The supreme court should promulgate a Probate Rule that requires the prudent management of costs in Title 14 cases. Page 83 of 432 Although the legislature enacted A.R.S. § 14-1104 as part of SB 1499 to require the prudent management of costs in Title 14 cases, the Committee voted to repeat and expand slightly on this provision 24 in the Probate Rules to provide a blueprint for the court, parties, and interested persons for cost management throughout the life of a case. The Committee recommends the supreme court promulgate the following Probate Rule: RULE 10.2: PRUDENT MANAGEMENT OF COSTS IN A PROCEEDING BROUGHT PURSUANT TO TITLE 14: A. THE FIDUCIARY MUST PRUDENTLY MANAGE COSTS, PRESERVE THE ASSETS OF THE WARD OR PROTECTED PERSON FOR THE BENEFIT OF THE WARD OR PROTECTED PERSON, AND PROTECT AGAINST INCURRING ANY COSTS THAT EXCEED PROBABLE BENEFITS TO THE WARD, PROTECTED PERSON, DECEDENT'S ESTATE OR TRUST, EXCEPT AS OTHERWISE DIRECTED BY A GOVERNING INSTRUMENT OR COURT ORDER. B. THE GUARDIAN AD LITEM, FIDUCIARY, FIDUCIARY'S ATTORNEY, ATTORNEY FOR THE WARD OR PROTECTED PERSON MUST TIMELY DISCLOSE TO THE COURT AND ALL PERSONS ENTITLED TO NOTICE IF THE PERSON HAS A REASONABLE BELIEF THAT PROJECTED COSTS OF COMPLYING WITH A COURT ORDER MAY EXCEED THE PROBABLE BENEFITS TO THE WARD, PROTECTED PERSON, DECEDENT'S ESTATE OR TRUST. IF APPROPRIATE, CONSISTENT WITH DUE PROCESS, THE COURT SHALL ENTER OR MODIFY THE ORDERS AS MAY PROTECT OR FURTHER THE BEST INTEREST OF THE WARD, PROTECTED PERSON, DECEDENT'S ESTATE OR TRUST AGAINST PROJECTED COSTS THAT EXCEED PROBABLE BENEFITS. Proposed Rule 10.2, unlike newly enacted A.R.S. § 14-1104, requires timely disclosure that projected costs of complying with a court order may exceed probable benefits, and expands consideration of market rates for goods and services to all stages of a case rather than just at the time of appointment of a fiduciary or a substitute fiduciary. 24 Page 84 of 432 C. MARKET RATES FOR GOODS AND SERVICES ARE A PROPER, ONGOING CONSIDERATION FOR THE FIDUCIARY AND THE COURT DURING THE INITIAL COURT APPOINTMENT OF A FIDUCIARY OR ATTORNEY, A HEARING ON A BUDGET OBJECTION AND A REQUEST TO SUBSTITUTE A COURT-APPOINTED FIDUCIARY OR ATTORNEY. AT ANY STAGE OF THE PROCEEDINGS, THE COURT MAY ORDER THAT COMPETITIVE BIDS FOR GOODS OR SERVICES BE OBTAINED. Recommendation U: The Committee recommends the supreme court carefully consider the value of a Probate Rule that requires a petitioner for a conservatorship to include a good faith estimate for certain costs with the petition. If the supreme court chooses to require such estimates, the Committee recommends promulgation of Probate Rule 30.1. A focal point of many disputes that arise concerning fees and costs in a guardianship or conservatorship case is the lack of knowledge about the range of those fees and costs at the commencement of a case. The Committee believes it is imperative to increase transparency and disclosure of anticipated fees and costs to the greatest extent possible. Interested persons are sometimes shocked when they view the annual account and learn for the first time the amount of estate monies used to manage the guardianship or conservatorship. Litigation regarding the propriety of these expenses can ensue, resulting in more fees and costs being incurred. The Committee recommends the supreme court reduce the occurrences of “sticker shock” and minimize resulting litigation costs by promulgating a series of Probate Rules and attendant forms designed to disclose anticipated expenses early in a case and resolve any potential disputes about management of a Page 85 of 432 guardianship or conservatorship case before fees and costs are incurred and paid from an estate. During the recent legislative session, an early version of SB 1499 contained a provision requiring a petitioner for a conservatorship or guardianship to file with the petition a good faith estimate of enumerated projected monthly costs to the protected person’s estate and a subsequent, optional budget. Members of the Committee worked with the legislature and other interested persons to refine the language of the proposed estimate and budget procedure. In the course of doing so, the Committee sought and received AJC’s approval at its March 24, 2011 meeting. Thereafter, the supreme court supported the estimate and budget procedures set forth in SB 1499, although it expressed a preference for placing such procedures in court rules in order to more readily make adjustments to the procedures as necessary. Prior to the final passage of SB 1499, the legislature removed the estimate and budget provisions from the bill. After enactment of SB 1499, the Committee renewed discussions concerning the wisdom of requiring petitioners in guardianship or conservatorship cases to submit estimates with original petitions prior to the appointment of the fiduciary. After extensive discussion, the Committee agreed that pre-appointment estimates should not be required in guardianship-only cases. Members divided on whether to Page 86 of 432 recommend that the supreme court promulgate a Probate Rule that requires good faith estimates in conservatorship cases. Members of the Committee favoring promulgation of a rule requiring good faith estimates in conservatorship cases concluded that requiring estimates at the time of the petition would further the goals of transparency and disclosure of projected fees and costs. Although petitioners may not be able to accurately estimate expenses, they likely would be capable in many cases of making some projections that would better inform the court and all interested persons from the outset. Such information early in the process may also spur the petitioner to examine all options before deciding who to urge as conservator and could draw out any disputes for resolution before fees and costs are incurred. Because the proposed rule allows a petitioner to forego making an estimate if the petitioner cannot do so in good faith, a petitioner should not be unduly burdened by the rule. Conversely, without the estimate procedure, petitioners seeking conservatorships for subject persons with small estates and predictable costs likely would be required to file budgets, which would be more burdensome and may unnecessarily tax the resources of the court. Members of the Committee who do not favor promulgation of a rule requiring good faith estimates reasoned that requiring estimates in all conservatorships would needlessly increase the cost of case management with no Page 87 of 432 significant ensuing benefit and may deter family members from petitioning for a needed conservatorship. Because of HIPPA and financial privacy laws, the petitioner may not have access to much of the information needed to make estimates. Members also expressed concerns that providing accurate estimates before appointment of a fiduciary would be extremely difficult in many cases because the petitioner would not yet have access to information needed to make an accurate estimate, interested persons may feel misled if costs are ultimately much higher than originally estimated based on the limited available information, and privacy rights of the subject person may be unduly infringed upon. The Committee recommends that the supreme court carefully consider the pros and cons of requiring good faith estimates at the time of a petition for conservatorship. The Committee is not aware that any courts outside Arizona have implemented a similar estimate process; Arizona would be the first. For that reason, if the court is inclined to implement an estimate requirement, it should further consider whether to initially conduct pilot projects statewide and measure results before permanently requiring the procedure. Should the supreme court decide to proceed with the estimate procedure, the Committee recommends adding a Probate Rule as follows: RULE 30.1: GOOD FAITH ESTIMATE A. PETITION TO APPOINT A CONSERVATOR SHALL BE ACCOMPANIED BY A GOOD FAITH ESTIMATE OF ALL PROJECTED MONTHLY AND Page 88 of 432 ANNUAL COSTS THAT SHALL BE INCURRED BY A CONSERVATOR, EXCEPT MEDICAL COSTS, TO THE EXTENT THE INFORMATION CAN BE REASONABLY KNOWN OR PROJECTED AT THE TIME A PETITION IS FILED. B. THE GOOD FAITH ESTIMATE SHALL BE MADE IN FORM 5 SET FORTH IN RULE 38 (FORMS) AND SHALL CONFORM TO THE INSTRUCTIONS PROVIDED WITH FORM 5. C. IF THE PETITIONER IS UNABLE TO PROVIDE ALL OR PART OF THE GOOD FAITH ESTIMATE AT THE TIME THE PETITION IS FILED, THE PETITIONER MUST STATE IN THE PETITION ALL EFFORTS MADE BY THE PETITIONER TO OBTAIN THE ESTIMATES, AND THE PETITIONER SHALL UPDATE THE GOOD FAITH ESTIMATE FIVE DAYS BEFORE THE HEARING ON THE PETITION IF FURTHER INFORMATION BECOMES KNOWN. Assuming the supreme court promulgates Rule 30.1, the Committee further recommends that the court adopt Form 5 (Appendix K) as part of the forms set forth in Probate Rule 38 and require all petitioners for a conservatorship to use it. This form also should be posted on the superior court’s website and/or the Seniors and Probate website in a format that automatically tabulates numbers for ease and accuracy of calculation. Eventually, Form 5 should be integrated into the AZTurboCourt filing system as a smart form. See Recommendation 8, p. 23. Recommendation V: The supreme court should promulgate Probate Rules requiring a conservator to disclose the sustainability of a conservatorship and permit the court to order a budget in the early stages of a case and on an ongoing basis and authorizing the court to issue financial orders to better oversee a case. Page 89 of 432 A conservator is required by A.R.S. § 14-5418(A) to file an inventory of the protected person’s estate within 90 days after the court issues letters of conservator. At that point, the conservator is in a position to provide a detailed forecast of fees and expenses anticipated in a case. The conservator also has sufficient information to formulate a plan for use of the protected person’s assets over the course of that person’s projected lifespan. Although a conservator obviously cannot pinpoint with precision all expenses that may occur in the day-today life of a protected person or accurately predict that person’s lifespan, the Committee believes the conservator has sufficient information at that point in time to estimate whether the estate assets will last the person’s projected lifetime, disclose that estimate to the court and interested persons, and plan accordingly. In the Committee’s view, the benefits of early planning and disclosure, even if imprecise, are preferable to engaging in the planning process on an emergency basis as assets dwindle. The Committee recommends that all conservators be required to file a number of financial forms with the court as the case progresses to both further transparency in management of an estate and permit interested parties to raise concerns with the court about a plan prior to its implementation. Specifically, the Committee recommends adoption of forms 6 – 10 in Probate Rule 38 (Appendix L). The Committee anticipates that filing one or more of these forms, as required, Page 90 of 432 will reduce later disputes with attendant costs to estates. Thus, the supreme court should require conservators to file the following: 1. An estimate of the sustainability of a conservatorship filed at the time of the inventory. The Committee recommends use of a mathematical formula to estimate whether a conservatorship is sustainable. If not, the conservator must inform the court of an alternative plan for furthering the best interest of the protected person. 2. A conservatorship budget filed at the time of the inventory and with the conservator’s account thereafter, unless otherwise ordered by the court. Interested persons are entitled to raise timely objections to the proposed budget for resolution by the court. The court may accept a budget in the absence of an objection or approve, disapprove or modify the budget upon its own motion or upon an objection. If an interested person fails to timely object to the budget, the budget will be deemed presumptively reasonable at the time of the conservator’s account, although the conservator still bears the burden of proving the reasonableness of expenses. Finally, the conservator must provide timely notice of any changes in expenditures projected to exceed a budget category by ten percent or $2,000, whichever is greater, unless a different threshold is set by the court. 3. Annual conservatorship accounts that provide more meaningful information to the court to permit it to better assess the reasonableness of fees and Page 91 of 432 costs expended in a conservatorship case. The Committee recommends that account forms be uniform for statewide use in the interests of consistency, training, and eventual adaptation in the AZTurboCourt e-filing system. Some judicial officers have raised concerns about the availability of time and resources to review and approve, disapprove, or modify a budget filed at the time of the inventory. The Committee appreciates this concern and therefore recommends authorizing the court to enter an order at the time of appointment relieving the conservator from filing an initial budget. Also, if a budget is filed without objection, the court need not review it; the budget will be deemed presumptively reasonable at the time of the annual account. Additionally, the court should be afforded discretion to enter other financial orders such as requiring an updated estimate to oversee a particular case. The Committee believes providing the court with flexibility in crafting financial orders geared to a particular case will enable the court to enhance oversight of cases using available resources. To implement the above-described course of action, the Committee recommends promulgation of the following Probate Rules: Rule 30. Guardianships/Conservatorships-Specific Procedures 25 A. Inventories INVENTORY. 1. Unless otherwise ordered by the court, the conservator shall file the inventory of the protected person's estate, AS REQUIRED BY A.R.S. SECTION The suggested changes in Rule 30 also change terminology to be consistent with statutory references. 25 Page 92 of 432 14-5418(A), within 90 days after the conservator's letters of conservator, whether temporary or permanent, are first issued. The inventory shall list all property owned by the protected person as of the date the conservator's letters of conservator, whether temporary or permanent, were first issued, and shall provide the values of such assets as of the date of the conservator's first appointment. 2. If the conservator is unable to file the inventory within 90 days after the conservator's letters of conservator, whether temporary or permanent, are first issued, the conservator shall, before the deadline, file a motion that requests additional time to file the inventory. Such motion shall state why additional time is required and how much additional time is required to file the inventory. 3. If, after filing the inventory but before filing the conservator's first ACCOUNT accounting, the conservator discovers an additional asset or discovers that the value of an asset on the inventory, whether appraised or not, is erroneous or misleading, the conservator shall file an amended inventory. If the conservator files an amended inventory because the conservator has discovered an additional asset and if the additional asset is not already subject to a court-ordered restriction, the conservator shall, with the amended inventory, file a petition requesting the court to either increase the amount of the conservator's bond or enter an order restricting the sale, conveyance, or encumbrance of the additional asset. 4. Unless permitted by the court, after a conservator has filed the conservator's first ACCOUNT accounting with the court, the conservator shall not amend the inventory. If the conservator discovers any assets after the filing of the conservator's first ACCOUNT accounting or if the conservator discovers that the value of an asset listed on the inventory is erroneous or misleading, the conservator shall make the appropriate adjustments on the conservator's subsequent ACCOUNTS accountings. B. CONSERVATOR’S ACCOUNTS Accountings. 1. Unless otherwise ordered by the court, the conservator's first ACCOUNT accounting shall reflect all activity relating to the conservatorship estate from the date the conservator's letters were first issued through and including the last day of the ninth month after the date the conservator's permanent letters were issued and shall be filed with the court on or before the anniversary date of the issuance of the conservator's permanent letters. For each bank or securities account listed on the ending balance schedule of the ACCOUNT accounting, the conservator shall attach to the ACCOUNT accounting a copy of the monthly statement that corresponds to the ending balance of such account as reflected on the ACCOUNT accounting. Page 93 of 432 2. Unless otherwise ordered by the court, all subsequent ACCOUNTS accountings shall reflect all activity relating to the conservatorship estate from the ending date of the most recent previously filed ACCOUNT accounting through and including the last date of the twelfth month thereafter, and shall be filed with the court on or before the anniversary date of the issuance of the conservator's permanent letters. For each bank or securities account listed on the ending balance schedule of the ACCOUNT accounting, the conservator shall attach to the ACCOUNT accounting a copy of the monthly statement that corresponds to the ending balance of such account as reflected on the ACCOUNT accounting. 3. UNLESS OTHERWISE ORDERED BY THE COURT, THE CONSERVATOR’S ACCOUNT SHALL BE FILED IN THE FORMAT SET FORTH IN THE APPROPRIATE FORM CONTAINED IN RULE 38 OF THESE RULES. 4.3. Unless otherwise ordered by the court and except as provided in A.R.S. § 14-5419(F), a conservator shall file a final ACCOUNT accounting for a deceased protected person within 90 days after the date of the protected person's death. 5.4. If the conservator is unable to file an ACCOUNT accounting within the time set forth in this rule, the conservator shall, before the deadline, file a motion that requests additional time to file the ACCOUNT accounting. The motion shall, at a minimum, state why additional time is required and how much additional time is required to file the ACCOUNT accounting. 6.5. For purposes of this rule, if the conservator's appointment initially was temporary, “the date the conservator's letters were first issued” shall mean the date the conservator's temporary letters were issued; otherwise, “the date the conservator's letters were first issued” shall mean the date the conservator's permanent letters were issued. C. Annual Guardian Reports 1. Unless otherwise ordered by the court, the guardian's first annual report shall cover the time from the date the guardian's letters were first issued through and including the last day of the ninth month after the date the guardian's permanent letters were issued. The report shall be filed with the court on or before the anniversary date of the issuance of the guardian's permanent letters. 2. Unless otherwise ordered by the court, all subsequent annual reports of guardian shall cover the time from the ending date of the most recent previously filed annual report of guardian through and including the last date of the twelfth Page 94 of 432 month thereafter. The report shall be filed with the court on or before the anniversary date of the issuance of the guardian's permanent letters. 3. If the guardian is unable to file an annual report of guardian within the time set forth in this rule, the guardian shall, before the deadline, file a motion that requests additional time to file the report. The motion shall state why additional time is required and how much additional time is required to file the report. 4. For purposes of this rule, if the guardian's appointment initially was temporary, “the date the guardian's letters were first issued” shall mean the date the guardian's temporary letters were issued; otherwise, “the date the guardian's letters were first issued” shall mean the date the guardian's permanent letters were issued. RULE 30.2: FINANCIAL ORDER A. FOLLOWING THE APPOINTMENT OF A CONSERVATOR, A CONSERVATOR FOR AN ADULT SHALL INSTITUTE AND FOLLOW A BUDGET, AS SET FORTH IN RULE 30.4, UNLESS OTHERWISE ORDERED BY THE COURT, AND THE COURT MAY ENTER ONE OR MORE OF THE FOLLOWING ORDERS: 1. LIMIT EXPENDITURES FROM THE ESTATE OF THE PROTECTED PERSON AS THE COURT FINDS IS IN THE PROTECTED PERSON’S BEST INTEREST; OR, 2. REQUIRE THE CONSERVATOR TO PROCEED IN ANY OTHER LAWFUL MANNER THE COURT FINDS IS IN THE PROTECTED PERSON'S BEST INTEREST. B. AFTER A CONSERVATOR IS APPOINTED, THE COURT MAY DISCHARGE THE PROTECTED PERSON'S ATTORNEY IF THE COURT FINDS THAT THE COST OF THE CONTINUED REPRESENTATION EXCEEDS THE PROBABLE BENEFIT TO THE PROTECTED PERSON. UNTIL DISCHARGED, THE PROTECTED PERSON'S ATTORNEY HAS A CONTINUING DUTY TO REVIEW THE CONSERVATOR'S INVENTORY, BUDGETS AND ACCOUNTS AND TO NOTIFY THE COURT OF ANY OBJECTIONS OR CONCERNS THE ATTORNEY IDENTIFIES WITH RESPECT TO THE CONSERVATOR'S INVENTORY, BUDGETS AND ACCOUNTS. COMMENT Page 95 of 432 A.R.S. § 14-5408(A)(3) AUTHORIZES THE COURT, AFTER IT DETERMINES THAT A BASIS FOR THE APPOINTMENT OF A CONSERVATOR EXISTS WITH RESPECT TO A PERSON FOR REASONS OTHER THAN MINORITY, TO ENTER SUCH ORDERS AS ARE NECESSARY FOR THE BENEFIT OF THE PROTECTED PERSON AND MEMBERS OF THAT PERSON’S HOUSEHOLD. A.R.S. § 14-5426(A) AUTHORIZES THE COURT TO LIMIT THE POWERS OF A CONSERVATOR. CONSISTENT WITH THOSE STATUTES, THIS RULE IS INTENDED TO ENSURE THAT THE PROTECTED PERSON’S ESTATE IS PROPERLY MANAGED, PROTECTED, AND PRESERVED. RULE 30.3: SUSTAINABILITY OF CONSERVATORSHIP A. THE CONSERVATOR SHALL DISCLOSE WHETHER THE ANNUAL EXPENSES OF THE CONSERVATORSHIP EXCEED INCOME AND, IF SO, WHETHER THE ASSETS AVAILABLE TO THE CONSERVATOR LESS LIABILITIES ARE SUFFICIENT TO SUSTAIN THE CONSERVATORSHIP DURING THE PROJECTED LIFESPAN OF THE PROTECTED PERSON. IF THE ASSETS ARE NOT SUFFICIENT, THE CONSERVATOR SHALL ALSO DISCLOSE THE MANAGEMENT PLAN FOR THE NON-SUSTAINABLE CONSERVATORSHIP. UNLESS OTHERWISE ORDERED BY THE COURT, THE CONSERVATOR SHALL DISCLOSE THE INFORMATION REQUIRED BY THIS RULE, INCLUDING THE CONSERVATOR’S ASSUMPTIONS AND CALCULATION, WHEN FILING AN INVENTORY, ANY CONSERVATOR’S ACCOUNT, AND FOLLOWING ANY MATERIAL CHANGE OF CIRCUMSTANCES. B. THE INFORMATION REQUIRED BY THIS RULE SHALL BE A GOOD FAITH PROJECTION BASED UPON THE INFORMATION THAT IS REASONABLY AVAILABLE TO THE CONSERVATOR CONCERNING THE SUBJECT PERSON. THIS INFORMATION MAY BE CONSIDERED BY THE COURT WHEN ENTERING ORDERS. C. THE CONSERVATORSHIP IS DEEMED SUSTAINABLE IF THE FOLLOWING EQUATION IS PROJECTED TO BE TRUE: (AVAILABLE ASSETS MINUS LIABILITIES OF THE ESTATE) (ANNUAL EXPENDITURES MINUS ANNUAL INCOME) ≥ PROJECTED LIFESPAN Page 96 of 432 D. THE DISCLOSURE REQUIRED BY THIS RULE IS NOT REQUIRED IN THE CONSERVATORSHIP FOR A MINOR UNLESS OTHERWISE ORDERED BY THE COURT. E. UNLESS OTHERWISE ORDERED BY THE COURT, THE SUSTAINABILITY DISCLOSURE SHALL BE FILED IN THE FORMAT SET FORTH IN THE APPROPRIATE FORM CONTAINED IN RULE 38 OF THESE RULES. COMMENT THE PURPOSE OF THE DISCLOSURE REQUIRED BY THIS RULE IS TO PROVIDE THE COURT AND PARTIES WITH A GENERAL IDEA AS TO WHETHER THE ASSETS AND INCOME OF THE CONSERVATORSHIP ESTATE ARE SUFFICIENT TO PAY FOR THE PROTECTED PERSON’S EXPENSES DURING THAT PERSON’S PROJECTED LIFE EXPECTANCY. THUS, THE DISCLOSURE REQUIRED BY THIS RULE IS INTENDED TO SERVE SOLELY AS A MANAGEMENT TOOL; THE COURT DOES NOT INTEND THAT A GOOD FAITH PROJECTION WILL FORM THE BASIS FOR A CLAIM OF LIABILITY AGAINST THE CONSERVATOR. THE FOLLOWING EXAMPLE DESCRIBES HOW THE REQUIRED DISCLOSURE IS CALCULATED: ASSUME A PROTECTED PERSON’S ESTATE CONSISTS OF $20,000 IN BANK ACCOUNTS AND A RESIDENCE WITH A FAIR MARKET VALUE OF $120,000 AND A $65,000 MORTGAGE. FURTHER ASSUME THAT SAME PROTECTED PERSON HAS AN ANNUAL INCOME OF $20,000 AND ANNUAL EXPENSES (INCLUDING FIDUCIARY AND ATTORNEY FEES) OF $45,000. THE CONSERVATORSHIP’S SUSTAINABILITY IS CALCULATED AS FOLLOWS: ($120,000 + 20,000 − 65,000) ≥ PROJECTED LIFESPAN ($45,000 − 20,000)) $75,000 ≥ PROJECTED LIFESPAN $25,000 3 YEARS UNTIL ASSETS ARE DEPLETED ≥ PROJECTED LIFESPAN THUS, IF THE CONSERVATOR ESTIMATES THAT THE PROTECTED PERSON’S LIFESPAN IS THREE YEARS OR LESS, THE CONSERVATORSHIP IS SUSTAINABLE. ON THE OTHER HAND, IF THE CONSERVATOR ESTIMATES THAT THE PROTECTED PERSON’S Page 97 of 432 LIFESPAN IS MORE THAN THREE YEARS, THE CONSERVATORSHIP IS NOT SUSTAINABLE AND THE CONSERVATOR MUST EXPLAIN HOW THE PROTECTED PERSON’S EXPENSES WILL BE MANAGED AFTER THREE YEARS. RULE 30.4: CONSERVATORSHIP ESTATE BUDGET A. UNLESS OTHERWISE ORDERED BY THE COURT, THE CONSERVATOR SHALL FILE A BUDGET NOT LATER THAN THE DATE THE INVENTORY IS DUE AND WITH THE CONSERVATOR’S ACCOUNT FILED THEREAFTER, FOLLOWING CONSULTATION WITH ANY ATTORNEY OR GUARDIAN AD LITEM FOR THE PROTECTED PERSON. THE FIRST BUDGET SHALL COVER THE DATE OF THE CONSERVATOR'S INITIAL APPOINTMENT THROUGH AND INCLUDING THE END DATE OF THE CONSERVATOR'S FIRST ACCOUNT. B. UNLESS OTHERWISE ORDERED BY THE COURT, THE BUDGET SHALL BE FILED IN THE FORMAT SET FORTH IN THE APPROPRIATE FORM CONTAINED IN RULE 38 OF THESE RULES. C. THE CONSERVATOR MUST PROVIDE A COPY OF THE BUDGET TO ALL PERSONS ENTITLED TO NOTICE OF THE CONSERVATOR'S ACCOUNTS PURSUANT TO ARIZONA REVISED STATUTES SECTION 145419(C). D. THE CONSERVATOR SHALL FILE AN AMENDMENT TO THE BUDGET AND PROVIDE NOTICE IN THE SAME MANNER AS THE INITIAL BUDGET WITHIN THIRTY DAYS AFTER REASONABLY PROJECTING THAT THE EXPENDITURES FOR ANY SPECIFIC CATEGORY WILL EXCEED THE APPROVED BUDGET BY MORE THAN TEN PER CENT OR TWO THOUSAND DOLLARS, WHICHEVER IS GREATER, UNLESS A DIFFERENT THRESHOLD FOR AMENDMENT IS PRESCRIBED BY THE COURT. E. AN INTERESTED PERSON MAY FILE A WRITTEN OBJECTION TO THE BUDGET OR AMENDMENT WITHIN FOURTEEN DAYS AFTER THE FILING DATE OF THE BUDGET OR AMENDMENT. ON THE FILING OF A WRITTEN OBJECTION, THE COURT MAY OVERRULE ALL OR PART OF THE OBJECTION, ORDER A REPLY BY THE CONSERVATOR OR SET A HEARING ON THE OBJECTION. THE COURT MAY ALSO SET A HEARING IN THE ABSENCE OF AN OBJECTION. AT A HEARING, THE CONSERVATOR HAS THE BURDEN TO PROVE THAT A CONTESTED Page 98 of 432 BUDGET ITEM IS REASONABLE, NECESSARY AND IN THE BEST INTEREST OF THE PROTECTED PERSON. IF AN INTERESTED PERSON FAILS TO OBJECT TO A BUDGET ITEM WITHIN FOURTEEN DAYS AFTER THE FILING DATE OF THE BUDGET OR AMENDMENT, HOWEVER, THE BUDGET ITEM SHALL BE DEEMED PRESUMPTIVELY REASONABLE AT THE TIME OF THE CONSERVATOR’S ACCOUNT. F. THE COURT MAY ORDER THAT A BUDGET IS ACCEPTED IN THE ABSENCE OF AN OBJECTION. ON THE COURT’S OWN MOTION OR UPON THE FILING OF A WRITTEN OBJECTION, THE COURT SHALL APPROVE, DISAPPROVE OR MODIFY THE BUDGET TO FURTHER THE PROTECCTED PERSON’S BEST INTEREST. Recommendation W: The supreme court should amend existing Probate Rules 7 and 38 to require use of appropriate forms to satisfy mandatory reporting requirements, to make the instructions in these forms binding, and to treat the completed forms confidentially. The forms required by proposed Probate Rules 30.1, 30.3, and 30.4 (see Appendix L) report sensitive financial information and therefore should be treated as confidential documents. Conservators should be required to use these precise forms for ease of training, judicial review, and eventual incorporation into the AZTurboCourt e-filing system. Until the forms are available through AZTurboCourt, they should be made available on an appropriate judicial website(s) using a spreadsheet workbook with appropriately embedded formulas designed to automatically perform necessary calculations. 26 Finally, the instructions for the forms are too detailed to place directly in the pertinent Probate The Committee prepared the forms set forth in the Appendix using a Microsoft Excel® workbook.. 26 Page 99 of 432 Rule. The Committee therefore recommends that the instructions in the forms have the force of rule. 27 The Committee recommends amendments to Probate Rules 7 and 38 as follows: Rule 7. Confidential Documents and Information A. Definitions. 1. For purposes of this rule, “confidential document” means the following: a. [unchanged] b. [unchanged] c. GOOD FAITH ESTIMATES AND BUDGETS FILED PURSUANT TO RULES 30.1, 30.3, AND 30.4, ARIZONA RULES OF PROBATE PROCEDURE. d. c. inventories and appraisements filed pursuant to A.R.S. § 145418(A); e. d. accountings filed pursuant to A.R.S. Title 14; f. e. a credit report; or g. f. any other document ordered by the court to be filed or maintained as a confidential document pursuant to this rule. Rule 38. Appendix to Forms The supreme court may wish to consider starting the financially related forms with number 10 in order to reserve lower numbers for future forms relating to the initiation of a guardianship or conservatorship. 27 Page 100 of 432 A. The f Forms 1 THROUGH 4 included in Appendix A are the preferred forms and meet the requirements of these rules. Whenever these rules require the use of a form that is “substantially similar” to a form contained in this rule, such language means that the content of these forms may be adapted to delete information that does not apply to a particular case or add other relevant information, provided that all information contained in the preferred form and applicable to the case is included. The deletion of information contained in the preferred form or the failure to complete a portion of the preferred form constitutes a representation to the court and adverse parties that the omitted or unanswered questions or items are not applicable. Any form may be modified for submission at times and under circumstances provided for by an Administrative Order of the Supreme Court of Arizona. B. The f Forms 1 THROUGH 4 in Appendix A shall not be the exclusive method for presenting such matters in the superior court. B. FORMS 5 THROUGH 10 INCLUDED IN APPENDIX A MEET THE REQUIREMENTS OF THESE RULES. UNLESS OTHERWISE ORDERED BY THE COURT, FORMS 5 THROUGH 9 SHALL BE THE EXCLUSIVE METHOD FOR PRESENTING SUCH MATTERS IN THE SUPERIOR COURT. FORM 10 CAN BE USED BY A CONSERVATOR ONLY IF AUTHORIZED BY THE COURT TO DO SO. THE INSTRUCTIONS INCLUDED WITH FORMS 5 THROUGH 10 SUPPLEMENT THE RULES AND HAVE THE SAME FORCE AND EFFECT AS THE RULES. COMMENT The f Forms 1 THROUGH 4 contained in Appendix A are sufficient under the rules and are intended to indicate the simplicity and brevity of statement that these rules contemplate. Although use of these forms is encouraged, the forms are not the exclusive means for addressing the court in writing. FORMS 5 THROUGH 10, HOWEVER, MUST BE USED IN THEIR EXACT FORM AS THEY ARE THE EXCLUSIVE MEANS FOR ADDRESSING THE COURT IN WRITING. FORM 10 IS A SIMPLIFIED FORM THAT CAN ONLY BE USED BY THE CONSERVATOR IF THE COURT SO AUTHORIZES. THE REQUIREMENT OF USING THESE FORMS IS IMPOSED IN AN EFFORT TO INCREASE JUDICIAL OVERSIGHT OF Page 101 of 432 CONSERVATORSHIPS. THESE FORMS WILL BRING UNIFORMITY AND COMPARABILITY TO JUDICIAL OVERSIGHT OF CONSERVATORSHIPS. Recommendation X: The supreme court should promulgate a Probate Rule that reiterates new statutory requirements concerning compensation by the estate of a ward or protected person. In order to promote transparency and disclosure of fees paid from the estate of a ward or protected person, newly enacted A.R.S. § 14-5109(A) and (B) requires guardians, conservators, attorneys, and guardians ad litem to provide written notice of the basis of compensation to the court and interested persons. Newly enacted § 14-5110(A) provides a deadline for submitting claims for fees. See Appendix E. The Committee recommends that the supreme court promulgate a Probate Rule reiterating these requirements by referring to the statutes because many affected persons may consult the Probate Rules to determine procedural requirements governing fees. Section 14-5109(C), A.R.S., requires compensation paid from an estate to be reasonable and necessary. See Appendix E. The provision lists factors for considering whether compensation meets this standard. Among other factors, the statute provides that “any other factors bearing on the reasonableness of fees” should be considered. Pursuant to the court’s direction in the AO 2010-52, the Committee has drafted recommended guidelines for use by the court in determining the reasonableness of fees paid from an estate. See Appendix M. To Page 102 of 432 require use of the guidelines and to address the previously described compensation issues, the court should amend Probate Rule 33 as follows: Rule 33. Compensation for Fiduciaries and Attorney's Fees Attorneys; STATEWIDE FEE GUIDELINES A. A GUARDIAN, CONSERVATOR, ATTORNEY OR GUARDIAN AD LITEM WHO INTENDS TO BE COMPENSATED BY THE ESTATE OF A WARD OR PROTECTED PERSON SHALL GIVE WRITTEN NOTICE OF THE BASIS OF ANY COMPENSATION AS REQUIRED BY ARIZONA REVISED STATUTES SECTION 14-5109. B.A. Unless otherwise ordered by the court, a petition that requests approval of compensation for a personal representative, trustee, guardian, conservator, guardian ad litem, attorney representing such fiduciary, or an attorney representing the subject person in a guardianship or conservatorship proceeding for services rendered in proceedings under A.R.S. Title 14 shall be accompanied by a statement that includes the following information: 1. If compensation is requested based on hourly rates, a detailed statement of the services provided, including the tasks performed, the date each task was performed, the time expended in performing each task, the name and position of the person who performed each task, and the hourly rate charged for such services; 2. An itemization of costs for which reimbursement is sought that identifies the cost item, the date the cost was incurred, the purpose for which the expenditure was made, and the amount of reimbursement requested, or, if reimbursement of costs is based on some other method, an explanation of the method being used for reimbursement of costs; and 3. If compensation is not based on hourly rates, an explanation of the fee arrangement and computation of the fee for which approval is sought. C.B. Copies of all petitions for compensation and fee statements shall be provided to or served on each party and person who has appeared or requested notice in the case. Proof of such service shall be filed with the court. D.C. If a petition for compensation or fees is contested, the objecting party shall set forth all specific objections in writing, and a copy of such written objections shall Page 103 of 432 be given to or served on each party and person who has appeared or requested notice in the case. Proof of service or delivery of such notice shall be filed with the court. E.D. When an attorney or fiduciary fee statement accompanies an annual accounting, the fee statement shall match the charges reported in the annual accounting or a reconciliation of the fee statement to the accounting shall be provided by the fiduciary. F.E. WHEN DETERMINING REASONABLE COMPENSATION, Tthe superior court SHALL FOLLOW THE STATEWIDE FEE GUIDELINES SET FORTH IN APPENDIX B TO THESE RULES. may adopt fee guidelines designating compensation rates that may be used in determining the reasonableness of fees payable to licensed fiduciaries in cases under A.R.S. Title 14. G.F. Unless ordered by the court, neither a personal representative nor a personal representative's attorney is required to file a petition for approval of such person's fees. H. COMPENSATION PAYABLE TO ATTORNEYS OR GUARDIANS AD LITEM FROM THE ESTATE OF A WARD OR PROTECTED PERSON IS WAIVED IF NOT SUBMITTED IN COMPLIANCE WITH ARIZONA REVISED STATUTES, SECTION 14-5110. Recommended Guidelines The Committee recommends that the supreme court adopt guidelines set forth in Appendix M. The guidelines are intended to assist the court, fiduciaries, guardians ad litem, attorneys, parties, and interested persons in evaluating whether compensation is reasonable. As provided in proposed Probate Rule 33(F), the guidelines apply statewide in order to promote a consistent application of factors when determining reasonableness of professional fees; courts in each county would adhere to these guidelines rather than set their own unique set of guidelines. Page 104 of 432 Because every case is different and every fiduciary, guardian ad litem, and attorney has unique qualifications, the recommended fee guidelines set forth compulsory billing standards, points of reference, and general compensation factors but not predetermined times to perform specific tasks, predetermined rate schedules, or fees as a percent of an estate. Therefore, following compliance with compulsory billing standards, the court must weigh the totality of the circumstances and, in its discretion, assign more or less weight to any given points of reference or compensation factors as it deems just and reasonable. The guidelines only apply to the compensation of court-appointed fiduciaries - specifically guardians, conservators, and personal representatives, licensed and unlicensed, as well as guardians ad litem and attorneys who are paid by a ward, protected person, estate, or trust. The guidelines do not apply to compensation paid by a trust or decedent’s estate if compensation is specified or set forth in the relevant trust or testamentary instrument. The fee guidelines do not apply when the fees are not paid by the estate – e.g., a court-appointed attorney who is paid by the court. Early in the proceedings, a minority of the Committee recommended use of fee guidelines tied to the amount of liquid assets in an estate not reserved for the protected person’s projected living expenses. The goal of those guidelines was to reserve sufficient estate assets to pay the protected person’s reasonable living Page 105 of 432 expenses for that person’s estimated lifespan. The majority of the Committee rejected this approach. The Committee concluded rigid guidelines that establish flat hourly rates, specify a dollar limit for the performance of a certain task, or set a ceiling for the amount of professional fees that is tied to the size of an estate is fraught with problems. Professional services must be tailored to the specific circumstances of each engagement, and a one-size-fits-all regulatory approach to professional services and compensation is not practical and not in the best interest of each unique ward, protected person, estate, and trust. Although such regulatory approaches have the attraction of apparent simplicity, the result can be increased administrative costs, diminished quality of professional services, or underserved populations. Reasonable compensation is best determined on a case-by-case basis, while applying consistent compensation guidelines. The Committee agreed it is appropriate to consider the sufficiency of estate assets to sustain the protected person’s projected lifespan. Rather than address this issue in fee guidelines, however, the Committee concluded it is more appropriately addressed in the sustainability disclosure provided in proposed Probate Rule 30.3. As mentioned, in lieu of rigid guidelines, the Committee recommends guidelines that permit market forces to operate and grant the court flexibility in application to a particular estate. Thus, although the guidelines set forth compulsory billing standards - prohibiting the practice of “double dipping” when Page 106 of 432 simultaneously performing tasks for multiple clients, for example – the guidelines also rely on points of reference for various tasks that will promote predictability in determining what fees are reasonable. For example, the guidelines provide as a point of reference that a fiduciary expends six hours per month for routine shopping if a ward lives at home and two hours per month if the ward lies in a facility. If routine shopping takes more time, the fiduciary would be expected to justify the variance to the court. Significantly, the recommended guidelines provide that total expenditures from an estate, including reasonable professional fees, cannot deplete an estate unless the conservator has disclosed an alternate plan for the estate as required by recommended Probate Rule 30.3. Finally, the guidelines report as points of reference hourly professional compensation ranges for attorneys, licensed fiduciaries, and guardians ad litem. These ranges would be gathered from information compiled by AOC based on available information concerning market rates for these professionals, published on the AOC’s website for use by interested persons and the court, and periodically updated. The hourly ranges are non-binding but would serve as informative and persuasive initial points of reference in determining reasonable compensation. In summary, the recommended guidelines, along with the proposed use of budgets, detailed accounts, and other financial tools, would assist professionals, Page 107 of 432 interested persons, and the court in determining appropriate management for the estate of a ward or protected person. Recommendation Y: The supreme court should promulgate a Probate Rule governing summary denial of repetitive filings as permitted by newly enacted A.R.S. § 14-1109. As part of SB 1499, the legislature enacted A.R.S. § 14-1109, which authorizes the court to summarily deny a repetitive motion or petition without requiring a response. See Appendix E. This provision will permit the court to control professional fees incurred by an estate by relieving a fiduciary or attorney for a ward or protected person from responding repeatedly to renewed motions that the court has already considered and denied. If the motion seeks new relief or raises new grounds for relief previously denied, the court can require a response. To implement A.R.S. § 14-1109, the Committee recommends promulgation of an amendment to Probate Rule 18 as follows: Rule 18. Motions A. Generally. A motion shall be filed with the court when a party seeks procedural rather than substantive relief. B. Motions for Appointment of Guardian Ad Litem or Counsel. A party requesting the appointment of a guardian ad litem or counsel shall make such request in a motion that sets forth why the appointment is necessary or advisable and what, if any, special expertise is required of the guardian ad litem or counsel. C. IF A PARTY HAS A GOOD FAITH BELIEF THAT AN INTERESTED PERSON HAS FILED A MOTION OR PETITION THAT REQUESTS THE SAME OR SUBSTANTIALLY SIMILAR RELIEF TO THE RELIEF Page 108 of 432 REQUESTED IN AN EARLIER MOTION OR PETITION FILED BY THE SAME INTERESTED PERSON WITHIN THE PRECEDING TWELVE MONTHS, AND IF THE LATER FILED MOTION OR PETITION DOES NOT DESCRIBE IN DETAIL A CHANGE IN FACT OR CIRCUMSTANCE THAT SUPPORTS THE REQUESTED RELIEF, THE PARTY MAY FILE A NOTICE OF REPETITIVE FILING. THIS NOTICE SHALL BE FILED NO LATER THAN THE RESPONSE OR OBJECTION DEADLINE FOR THE ALLEGEDLY REPETITIVE FILING AND SHALL INCLUDE THE TITLE AND DATE OF THE ALLEGED REPETITIVE FILING, THE TITLE AND DATE OF THE EARLIER FILING, AND THE DATE OF THE COURT’S RULING ON THE EARLIER FILING. A NOTICE OF REPETITIVE FILING SHALL HAVE THE EFFECT OF STAYING THE DEADLINE TO RESPOND OR OBJECT TO THE ALLEGED REPETITIVE FILING UNTIL FURTHER ORDER OF THE COURT. THE COURT MAY SUMMARILY STRIKE A REPETITIVE MOTION, WITHOUT HEARING, ON ITS OWN INITIATIVE OR FOLLOWING RECEIPT OF A NOTICE OF REPETITIVE FILING. COMMENT ARIZONA REVISED STATUTES SECTION 14-1109 PERMITS THE COURT TO SUMMARILY DENY A REPETITIVE MOTION OR PETITION, AS DESCRIBED IN THE STATUTE. RULE 18(C) PROVIDES A COSTEFFECTIVE MECHANISM FOR A PARTY TO INFORM THE COURT OF A GOOD FAITH BELIEF THAT A MOTION OR PETITION IS REPETITIVE WITHOUT WAIVING THE RIGHT TO FILE A RESPONSE OR OBJECTION SHOULD THE COURT ULTIMATELY DETERMINE THAT THE MOTION OR PETITION IS NOT REPETITIVE. NOTHING IN THIS RULE IS INTENDED TO PRECLUDE THE COURT ON ITS OWN MOTION FROM SUMMARILY DENYING A REPETITIVE MOTION OR PETITION. Recommendation Z: The supreme court should promulgate a Probate Rule limiting the ability of a petitioner to nominate a specific attorney to represent the subject person. On occasion, a petitioner will nominate an attorney to represent the ward or protected person based on the recommendation of a fiduciary. Page 109 of 432 Because that attorney effectively serves as the opposing counsel, it is potentially counterproductive or a conflict of interest to permit that fiduciary to essentially choose that attorney. In light of the relationship of trust between attorney and client, it is also inappropriate for a fiduciary’s attorney in other matters to represent the subject person. On the other hand, if a subject person has an established relationship with an attorney, the petitioner should be permitted to nominate that attorney to represent the subject person. The Committee recommends adoption of an amendment to Probate Rule 19 as follows: Rule 19. Appointment of Attorney, Medical Professional, and Investigator A. A request for the appointment of an attorney, medical professional, and investigator may be included in the petition for the appointment of a guardian or conservator and need not be made by separate motion. A separate form of order for the appointment of an attorney, a medical professional, and an investigator shall be submitted to the court within three days after the request is made. B. ABSENT GOOD CAUSE, A PARTY WHO SEEKS THE APPOINTMENT OF A GUARDIAN OR CONSERVATOR SHALL NOT NOMINATE A SPECIFIC ATTORNEY TO REPRESENT THE SUBJECT PERSON UNLESS THE ATTORNEY HAS AN EXISTING OR PRIOR ATTORNEY-CLIENT RELATIONSHIP WITH THE SUBJECT PERSON. If a party who seeks the appointment of a guardian or conservator nominates a specific attorney to represent the SUBJECT PERSON alleged incapacitated person or the person alleged to be in need of protection, the party shall, in the petition for appointment of guardian or conservator, describe the attorney's prior relationship, if any, with the petitioner and the SUBJECT PERSON alleged incapacitated person or the person alleged to be in need of protection. Page 110 of 432 C. UNLESS OTHERWISE ORDERED BY THE COURT, AN ATTORNEY SHALL NOT BE APPOINTED, ACCEPT AN APPOINTMENT, OR REMAIN APPOINTED AS THE ATTORNEY OR GUARDIAN AD LITEM FOR THE SUBJECT PERSON IF THE ATTORNEY HAS AN EXISTING ATTORNEYCLIENT RELATIONSHIP WITH THE NOMINATED OR APPOINTED FIDUCIARY. D.C. If a party who seeks the appointment of a guardian or conservator nominates a specific medical professional to evaluate the alleged incapacitated person or the person alleged to be in need of protection, the party shall, in the petition for appointment of guardian or conservator, describe the medical professional's prior relationship, if any, with the petitioner and the alleged incapacitated person or the person alleged to be in need of protection. E. D. Noncompliance with this rule may be cause for continuing the hearing on the petition for appointment of guardian or conservator to such time as the judicial officer directs. Recommendation A1: The supreme court should promulgate a Probate Rule addressing the procedure for passing over a person with higher priority when appointing a fiduciary. In SB 1499, the legislature amended A.R.S. § 14-5311(E) to require the court upon request of a person passed over for appointment as a fiduciary to make a specific finding regarding the court’s determination of good cause to appoint a person as a fiduciary with lower or no priority. See Appendix E. The Committee recommends the supreme court promulgate the following Probate Rule to establish procedures to implement § 14-5411(E): RULE 26.1: WRITTEN FINDINGS ON APPOINTMENT FOLLOWING A WRITTEN REQUEST BY A PERSON WITH HIGHER PRIORITY FOR APPOINTMENT AS A GUARDIAN OR CONSERVATOR BUT WHO WAS PASSED OVER BY THE COURT IN FAVOR OF APPOINTING A PERSON WITH LOWER PRIORITY, THE COURT SHALL Page 111 of 432 MAKE A SPECIFIC FINDING REGARDING THE COURT'S DETERMINATION OF GOOD CAUSE AND WHY THE PERSON WAS NOT APPOINTED. THE REQUEST MUST BE MADE WITHIN TEN DAYS AFTER THE ENTRY OF THE ORDER. Recommendation B1: The supreme court should promulgate Probate Rules to address available methods of alternative dispute resolution. In SB 1499, the legislature enacted A.R.S. § 14-1108 to authorize the court to order arbitration or other methods of alternative dispute resolution after appointment of a fiduciary. See Appendix E. This provision will assist the court and parties in resolving some disputes in a more efficient and cost-saving manner. The Committee recommends amendment of existing Probate Rules to govern procedures for such methods as follows: Rule 28. Pretrial Procedures A. Initial Procedures; Scheduling Conference. 1. If a matter is contested, unless the parties agree otherwise, the court shall set a scheduling conference that shall occur promptly after the date of the initial hearing on the petition. The scheduling conference may be held at the time set for the initial hearing on the petition. At the scheduling conference, the court and the parties shall address the following issues: .... b. the deadline for filing a joint alternative dispute resolution statement pursuant to Rule 29 16(g), Arizona Rules of Civil Procedure; .... Rule 29. Arbitration ALTERNATIVE DISPUTE RESOLUTION Page 112 of 432 Unless the parties to a contested matter agree otherwise, Rules 72 through 76, Arizona Rules of Civil Procedure, pertaining to compulsory arbitration, shall not apply. A. THE PARTIES TO A CONTESTED MATTER ARE NOT SUBJECT TO COMPULSORY ARBITRATION AS SET FORTH IN RULES 72 THROUGH 77, ARIZONA RULES OF CIVIL PROCEDURE. THE COURT IS AUTHORIZED BY ARIZONA REVISED STATUTES SECTION 14-1108, HOWEVER, TO ORDER ALTERNATIVE DISPUTE RESOLUTION, INCLUDING ARBITRATION. IF THE COURT ORDERS ARBITRATION, THE ARBITRATION SHALL BE GOVERNED BY RULES 73 THROUGH 77, ARIZONA RULES OF CIVIL PROCEDURE. B. UPON MOTION OF ANY PARTY OR UPON ITS OWN INITIATIVE, THE COURT MAY DIRECT THE PARTIES TO PARTICIPATE IN ONE OR MORE ALTERNATIVE DISPUTE RESOLUTION PROCESSES, INCLUDING BUT NOT LIMITED TO ARBITRATION, MEDIATION, SETTLEMENT CONFERENCE, OPEN NEGOTIATION, OR A PRIVATE DISPUTE RESOLUTION PROCESS AGREED UPON BY THE PARTIES. C. NO LATER THAN THIRTY (30) DAYS AFTER A PROBATE PROCEEDING BECOMES CONTESTED AS DEFINED BY RULE 27, THE PARTIES SHALL CONFER, EITHER IN PERSON OR BY TELEPHONE, ABOUT: 1. THE POSSIBILITIES FOR A PROMPT SETTLEMENT OR RESOLUTION OF THE CASE; AND 2. WHETHER THE PARTIES MIGHT BENEFIT FROM PARTICIPATION IN SOME ALTERNATIVE DISPUTE RESOLUTION PROCESS, THE TYPE OF PROCESS THAT WOULD BE MOST APPROPRIATE IN THEIR CASE, THE SELECTION OF AN ALTERNATIVE DISPUTE RESOLUTION SERVICE PROVIDER, AND THE SCHEDULING OF THE PROCEEDINGS. Page 113 of 432 D. THE PARTIES ARE RESPONSIBLE FOR ATTEMPTING IN GOOD FAITH TO AGREE ON AN ALTERNATIVE DISPUTE RESOLUTION PROCESS AND FOR REPORTING THE OUTCOME OF THEIR CONFERENCE TO THE COURT. WITHIN FIFTEEN (15) DAYS AFTER THEIR CONFERENCE, THE PARTIES SHALL INFORM THE COURT OF THE FOLLOWING: 1. IF THE PARTIES HAVE AGREED TO USE A SPECIFIC ALTERNATIVE DISPUTE RESOLUTION PROCESS, THE TYPE OF ALTERNATIVE DISPUTE RESOLUTION PROCESS TO BE USED, THE NAME AND ADDRESS OF THE ALTERNATIVE DISPUTE RESOLUTION SERVICE PROVIDER THEY WILL USE, AND THE DATE BY WHICH THE ALTERNATIVE DISPUTE RESOLUTION PROCEEDINGS ARE ANTICIPATED TO BE COMPLETED; 2. IF THE PARTIES HAVE NOT AGREED TO USE A SPECIFIC ALTERNATIVE DISPUTE RESOLUTION PROCESS, THE POSITION OF EACH PARTY AS TO THE TYPE OF ALTERNATIVE DISPUTE RESOLUTION PROCESS APPROPRIATE FOR THE CASE OR, IN THE ALTERNATIVE, WHY ALTERNATIVE DISPUTE RESOLUTION IS NOT APPROPRIATE; AND 3. IF ANY PARTY REQUESTS THAT THE COURT CONDUCT A CONFERENCE TO CONSIDER ALTERNATIVE DISPUTE RESOLUTION. E. DURING THE ALTERNATIVE DISPUTE RESOLUTION PROCESS, THE PARTIES HAVE A DUTY TO PARTICIPATE IN GOOD FAITH. Recommendation C1: The supreme court should ask for an amendment to A.R.S. § 14-1108 to permit use of alternative dispute resolution methods, including arbitration, for any issue in a probate case other than whether a subject person is incapacitated or in need of protection. Newly enacted A.R.S. § 14-1108 authorizes the superior court to order arbitration or alternative dispute resolution for disputes that arise after appointment Page 114 of 432 of a fiduciary. See Appendix E. To the Committee’s knowledge, the intent of the temporal component of the statute was to disallow use of such dispute resolution devices to determine a subject person’s capacity or need for protection. Disputes not involving these issues often arise before appointment of a fiduciary, however. For example, family members may dispute who among them is best suited to serve as a fiduciary. Similarly, will contests arise prior to the appointment of a fiduciary. Such disputes may be suited for quick and effective resolution through arbitration or other alternative dispute resolution devices rather than by a potentially more expensive evidentiary hearing. The Committee therefore recommends that the supreme court advocate for an amendment to A.R.S. § 14-1108 during the next legislative session to authorize the court to order arbitration or other alternative dispute resolution methods to resolve all disputes not involving a subject person’s capacity or need for protection. Recommendation D1: The supreme court should promulgate a Probate Rule that provides remedies for vexatious conduct. The Committee received comments that estates of wards, protected persons, and decedents can incur significant and unnecessary fees due to habitual conduct undertaken solely or primarily to harass a party or that party’s representative, cause unreasonable delay in proceedings, cause undue harm to the ward or protected person, or cause unnecessary expense. Conduct is not vexatious if undertaken in good faith even if the conduct is unreasonable. The court traditionally uses its Page 115 of 432 inherent authority to control vexatious conduct by screening filings by a vexatious actor before allowing them to proceed. The proposed rule would provide notice to all parties and interested persons of the availability of this remedy. This authority is exercised sparingly and is reserved for the most outrageous cases. Imposition of procedures for vexatious litigants is subject to appellate review. The Committee recommends the court promulgate a Probate Rule codifying the procedure for probate cases as follows: RULE 29.2: REMEDIES FOR VEXATIOUS CONDUCT; DEFINITIONS A. IF THE COURT FINDS THAT A PERSON ENGAGED IN VEXATIOUS CONDUCT IN CONNECTION WITH A PROBATE CASE, THE COURT MAY DO EITHER OR BOTH OF THE FOLLOWING: 1. ORDER THAT THE PERSON MUST OBTAIN THE COURT’S PERMISSION TO FILE FUTURE PLEADINGS AND OTHER PAPERS IN THE PROBATE CASE OR IN OTHER CASES. IF THE COURT ENTERS SUCH AN ORDER, NO PARTY IS REQUIRED TO RESPOND TO THE PERSON’S FUTURE FILINGS UNTIL ORDERED TO DO SO BY THE COURT. 2. ORDER THAT A FIDUCIARY, FIDUCIARY'S ATTORNEY, COURTAPPOINTED ATTORNEY GUARDIAN AD LITEM, TRUSTEE OR PERSONAL REPRESENTATIVE DOES NOT HAVE TO RESPOND TO FUTURE REQUESTS FOR INFORMATION MADE BY THE PERSON RELATED TO THE PROBATE CASE UNLESS REQUIRED BY SUBSEQUENT COURT ORDER. B. THE REMEDIES PERMITTED PURSUANT TO THIS SECTION ARE IN ADDITION TO ANY OTHER CIVIL REMEDY OR ANY OTHER PROVISION OF LAW. C. FOR THE PURPOSES OF THIS SECTION: Page 116 of 432 1. "COURT-APPOINTED ATTORNEY" MEANS AN ATTORNEY APPOINTED PURSUANT TO SECTION 14-5303, SUBSECTION C, SECTION 14-5310, SUBSECTION C, SECTION 14-5401.01, SUBSECTION C OR SECTION 14-5407, SUBSECTION B. 2. "FIDUCIARY" MEANS AN AGENT UNDER A DURABLE POWER OF ATTORNEY, AN AGENT UNDER A HEALTH CARE POWER OF ATTORNEY, A GUARDIAN, A CONSERVATOR, A PERSONAL REPRESENTATIVE, A TRUSTEE OR A GUARDIAN AD LITEM. 3. "VEXATIOUS CONDUCT" MEANS HABITUAL, REPETITIVE CONDUCT UNDERTAKEN SOLELY OR PRIMARILY TO HARASS OR MALICIOUSLY INJURE ANOTHER PARTY OR THAT PARTY’S REPRESENTATIVE, CAUSE UNREASONABLE DELAY IN PROCEEDINGS, CAUSE UNDUE HARM TO THE WARD OR PROTECTED PERSON, OR CAUSE UNNECESSARY EXPENSE. IT DOES NOT INCLUDE CONDUCT UNDERTAKEN IN GOOD FAITH. Recommendation E1: The supreme court should ask the legislature to amend A.R.S. §§ 14-5419, - 5315 to require that the conservator’s account and guardian’s report cover the period of the issuance of letters through the one-year anniversary of the appointment and annually thereafter. The court should then amend Probate Rules 30 and 31 to require filing of accounts and reports within 90 days after each anniversary date. Section 14-5419(A), A.R.S., provides that the conservator must “account to the court for administration of the estate not less than annually on the anniversary date of qualifying as conservator.” Similarly, A.R.S. § 14-5315(A) requires a guardian to “submit a written report to the court on each anniversary date of qualification as guardian.” Probate Rules 30 and 31 requires the first account to cover the initial nine months after issuance of letters of conservator/guardian and be filed one year after issuance of letters. Thereafter, accounts and reports are filed Page 117 of 432 annually. As a result, only the initial account and report covers a period less than one year. The Committee recommends that the supreme court seek amendments to A.R.S. §§ 14-5419(A) and -5315(A) to remove the language requiring an account and report filing “on the anniversary date” and substitute language providing that the account and report cover the initial full year of the appointment. Thereafter, the supreme court should amend Probate Rules 30 and 31 and attendant forms to provide that the account and report be filed within 90 days after the initial anniversary date of the issuance of letters and every anniversary date thereafter. These changes would impose a one-year initial account and report period, which matches subsequent account and report periods. Having identical periods would enhance the ability of the court, parties, and interested persons to use the forms recommended in this report to more accurately compare accounts and reports from year to year. Recommendation F1: The supreme court should adopt all proposed rules, forms, and guidelines set forth in Appendix N subject to all specific recommendations set forth previously in this report. Additionally, all rules, forms, and guidelines should be adopted simultaneously with an effective date from and after December 31, 2011 to coincide with the effective date of SB 1499. For ease of reference, the Committee has compiled in Appendix N a single packet of rules, forms, and guidelines proposed in this report. The Committee recommends adoption of the entire packet Page 118 of 432 subject to the specific recommendations set forth previously. Because this packet is designed to work in conjunction with SB 1499, the Committee further recommends that the supreme court adopt all recommended rules, forms, and guidelines, with the exception of those rules designed to work immediately in conjunction with SB 1081, with an effective date from and after December 31, 2011, the effective date of SB 1499. 3. Notice of Other Issues Currently, the judiciary does not keep detailed statistical information regarding guardianship and conservatorship cases beyond the number of cases pending and the number of fiduciaries licensed in Arizona. For example, the judiciary does not collect quantifiable data about: (a) the number of probate cases in which a licensed fiduciary is appointed as the fiduciary, (b) the number of cases that are uncontested, and (c) the average or median amount of fiduciary and attorney fees incurred in cases. Such information may assist the judiciary in assessing trends in probate cases and in discerning whether anecdotally reported problems are widespread or confined to case types with shared characteristics. The supreme court should consider the utility of collecting more statistical information regarding guardianship and conservatorship and may be well-served by appointing a focused task force to consider what information should be collected. Page 119 of 432 IV. Conclusion Many of the Committee’s recommendations set forth in this Final Report are the result of the Committee’s original ideas born from extensive consideration and discussion and have not been tested in courts within or outside Arizona. Thus, if it chooses to adopt these recommendations, the supreme court would blaze new trails in monitoring and administering probate matters. For this reason, the Committee urges the supreme court to continue to examine the tools in place for overseeing probate cases to ensure that best practices are in place and used in a cost-effective manner in both urban and rural counties. The Committee additionally urges the supreme court to work with other branches of government in this process. Members of the Committee have worked diligently and cooperatively to move the Arizona judiciary’s probate oversight procedures one giant step forward. Although the task has been time-consuming, members were honored to participate in this process in order to assist in better protecting the most vulnerable among Arizona’s citizens. We are confident the supreme court will continue along the path laid by its Committee and implement procedures that will make Arizona a Page 120 of 432 model in monitoring and administrating probate matters. Respectfully submitted June 13, 2011. ANN A. SCOTT TIMMER Hon. Ann A. Scott Timmer, Chair On behalf of the Committee on Improving Judicial Oversight and Processing of Probate Court Matters Page 121 of 432 APPENDIX A Arizona Alliance for Retired Americans: Doug Hart, President P.O. Box 5661 Goodyear, AZ 85338 AARP: Sylvia Stevens 7130 E. Saddleback St., #20 Mesa, AZ 85207 (email blast to all members of AARP and publication in the September 2010 Bulletin which is mailed to AARP members in the western states only.) Area Agency on Aging: 1366 E. Thomas Rd., #108 Phoenix, AZ 85014 Mental Health America of Arizona: Barbara A. Dawson, JD – Executive Director 6411 E. Thomas Road Scottsdale, AZ 85251 Arizona Association of Providers for People with Disabilities: 2034 E. Southern Ave., 3G Tempe, AZ 85282 Pima Council on Aging: Jim Murphy, President & CEO 8467 E. Broadway Tucson, AZ 85710 Arizona Center for Disability Law 5025 E. Washington, #202 Phoenix, AZ 85034 Page 122 of 432 Maricopa County Bar Association Estate Planning, Probate & Trust Section 303 E. Palm Lane Phoenix, AZ 85004 State Bar of Arizona Probate & Trust Law: 4201 N. 24th Street Phoenix, AZ 85016 Elder Law & Mental Health: Stacey L. Johnson, Esq. 8877 N. 107th Ave., #302 PMB 618 Peoria, AZ 85345-7474 American Bar Association Commission on Law and Aging: Charles P. Sabatino, Director ABA Commission on Law and Aging American Bar Association 740 15th St. N.W. Washington, DC 20005-1022 Arizona Foundation for Legal Services and Education: 4201 N. 24th Street Phoenix, AZ 85016 Senior Citizens Law Project 1818 S. 16th Street Phoenix, AZ 85034-5304 Arizona Consortium for Children with Chronic Illness: Karen Van Epps, President 2034 E. Southern Ave., #G Tempe, AZ 85282 Arizona State Planning Council on Developmental Disabilities: Larry Clausen, Executive Director 3839 N. Third St., #306 Phoenix, AZ 85012-2072 Page 123 of 432 Autism Society of America Greater Phoenix Chapter P.O. Box 10543 Phoenix, AZ 85064 National Academy of Elder Law Attorneys: Yvette N. Banker, President Arizona Chapter 16211 N. Scottsdale Rd., #A6A-485 Scottsdale, AZ 85254 Department of Economic Security, Division of Developmental Disabilities Melissa Kushner Child Welfare Integration Specialist Division of Developmental Disabilities 1789 West Jefferson, 4th Floor Phoenix, Arizona 85007 Kim D. Simmons Director, Staff Development and Training Arizona Department of Economic Security Division of Developmental Disabilities 1789 West Jefferson Phoenix, Arizona 85007 Council for Jews With Special Needs: Becca Hornstein, Director 12701 N. Scottsdale Road, #205 Scottsdale, AZ 85254 KARE CENTERS throughout the state: Joanna Marroquin KARE Family Intergenerational Center 1625 N. 39th Avenue Phoenix, AZ 85009 602-233-0017 ext. 37 Page 124 of 432 Julie Wood KARE Family Program – Coconino County 906 W. University Ave., Building B, #130 Flagstaff, AZ 86001 Laurie Melrood KARE Family Center of Tucson - Pima County 4710 E. 29th St., #7 Tucson, AZ 85711 KARE Family Program – Pinal/Gila Counties 2066 W. Apache Trail, #111 Apache Junction, AZ 85220 Sherie Gifford KARE Family Program – Yavapai County 440 N. Washington Ave. Prescott, AZ 86301 Virginia Villaneda KARE Family Program – Yuma County 3780 S. 4th Ave. Extension Yuma, AZ 85365 Beacon Group: Steven King, President P.O. Box 50544 Tucson, AZ 85703 Southwest Autism Research & Resource Center: Campus for Exceptional Children 300 N. 18th Street Phoenix, AZ 85006 Arizona Center for Law in the Public Interest: Timothy M. Hogan, Esq. Anne C. Ronan, Esq. 202 E. McDowell Road, #153 Phoenix, AZ 85004 Page 125 of 432 Tucson Office: Joy Herr-Cardillo, Esq. 2205 E. Speedway Tucson, AZ 85719 Northern Arizona Regional Behavioral Health Authority: 1300 S. Yale Street Flagstaff, AZ 86001 Page 126 of 432 Appendix B Workgroup Membership** Workgroup #1 Minor to Adult Guardianships Chair: Hon. David L. Mackey Superior Court in Yavapai County Becca Hornstein** Director, Jews with Special Needs Jay M. Polk Attorney Jon D. Kitchel** Attorney Jacob Schmitt Child Welfare Program Administrator Melissa Kushner** Child Welfare Integration Specialist, Division of Developmental Disabilities Kim D. Simmons** Director, Staff Development and Training, Division of Developmental Disabilities Callie Parkinson** Law Clerk to Chief Judge Timmer Hon. Ann A. Scott Timmer Arizona Court of Appeals, Div. 1 **Pursuant to Administrative Order 2010-52, Committee Chair Hon. Ann A. Scott Timmer appointed these persons to the workgroups, although they are not members of the full Committee. Page 127 of 432 Workgroup #2 Judicial Oversight of Probate Matters Chair: Hon. Charles Harrington Superior Court in Pima County Diana Clarke Probate Court Counsel, Superior Court in Maricopa County Hon. Julia Connors Superior Court in Pima County Faustina Dannenfelser Program Administrator, Services Adult Hon. Robert D. Myers (Retired) Public/Attorney Member Marcus Reinkensmeyer** Court Administrator, Superior Maricopa County Protective in Catherine Robbins Mohave County Public Fiduciary Hon. Gary Donahoe Superior Court in Maricopa County Mark Salem Public Member Elizabeth Evans** Probate Court Administrator, Superior Court in Maricopa County Sylvia Stevens AARP Representative Denise Lundin-Newton (Retired) Clerk of Superior Court Representative Court Ellen Terry** Volunteer Coordinator, East Valley Adult Resources Page 128 of 432 Workgroup #3 Fee Guidelines/Fee Awards and Fee Dispute Resolution Chair: Hon. Robert Carter Olson Superior Court in Pinal County Diana Clarke Probate Court Counsel, Superior Court in Maricopa County Jonathan W. Reich** Attorney Thomas L. Davis Public Member Elizabeth Evans** Probate Court Administrator, Superior Court in Maricopa County Pamela Johnston Licensed Fiduciary Honorable Rosa Mroz Superior Court in Maricopa County Callie Parkinson** Law Clerk to Chief Judge Timmer Jay M. Polk Attorney/State Bar Representative Catherine Robbins Mohave County Public Fiduciary Mark Salem Public Member Denice Shepherd Licensed Fiduciary/Attorney Michael D. Strauber** Attorney Hon. Ann A. Scott Timmer Arizona Court of Appeals, Div. 1 Page 129 of 432 Appendix C SENATE BILL 1081 AN ACT REPEALING SECTION 14-5301, ARIZONA REVISED STATUTES; AMENDING TITLE 14, CHAPTER 5, ARTICLE 3, ARIZONA REVISED STATUTES, BY ADDING A NEW SECTION 14-5301; AMENDING TITLE 14, CHAPTER 5, ARTICLE 3, ARIZONA REVISED STATUTES, BY ADDING SECTIONS 14-5301.01, 14-5301.02, 14-5301.03 AND 14-5301.04; AMENDING SECTIONS 14-5303, 14-5401, 14-5405, 14-5407, 14-5416 AND 145430, ARIZONA REVISED STATUTES; RELATING TO TRUSTS, ESTATES AND PROTECTIVE PROCEEDINGS. Be it enacted by the Legislature of the State of Arizona: Section 14-5301, Arizona Revised Statutes, is repealed. Sec.2. Title 14, chapter 5, article 3, Arizona Revised Statutes, is amended by adding a new section 14-5301, to read: 14-5301. APPOINTMENT OF GUARDIAN BY WILL OR OTHER WRITING; OBJECTIONS; NOTICE A. A PARENT, BY WILL OR OTHER SIGNED WRITING, MAY APPOINT A GUARDIAN FOR AN UNMARRIED CHILD WHO THE PARENT BELIEVES IS AN INCAPACITATED PERSON, SPECIFY DESIRED LIMITATIONS ON THE POWERS TO BE GIVEN TO THE GUARDIAN AND REVOKE OR AMEND THE APPOINTMENT BEFORE CONFIRMATION BY THE COURT. APPOINTMENTS BECOME EFFECTIVE ONLY AS PRESCRIBED PURSUANT TO SECTION 14-5301.01, SUBSECTION A. B. AN INDIVIDUAL, BY WILL OR OTHER SIGNED WRITING, MAY APPOINT A GUARDIAN FOR THE INDIVIDUAL'S SPOUSE WHO THE APPOINTING SPOUSE BELIEVES IS AN INCAPACITATED PERSON, SPECIFY DESIRED LIMITATIONS ON THE POWERS TO BE GIVEN TO THE GUARDIAN AND REVOKE OR AMEND THE APPOINTMENT BEFORE CONFIRMATION BY THE COURT. AN APPOINTMENT PURSUANT TO THIS SUBSECTION BECOMES EFFECTIVE ONLY AS PRESCRIBED PURSUANT TO SECTION 14-5301.01, SUBSECTION A. C. UNLESS THE COURT HAS CONFIRMED THE APPOINTMENT PURSUANT TO SUBSECTION D OF THIS SECTION, THE INCAPACITATED PERSON, THE PERSON HAVING CARE OR CUSTODY OF THE INCAPACITATED PERSON IF OTHER THAN THE APPOINTING PARENT OR SPOUSE OR THE ADULT NEAREST IN KINSHIP TO THE INCAPACITATED PERSON MAY FILE A WRITTEN OBJECTION TO AN APPOINTMENT. THE FILING OF THE WRITTEN OBJECTION TERMINATES THE APPOINTMENT. AN OBJECTION MAY BE WITHDRAWN AND, IF WITHDRAWN, HAS NO EFFECT. THE OBJECTION DOES NOT PRECLUDE JUDICIAL APPOINTMENT OF THE PERSON SELECTED BY THE APPOINTING PARENT OR SPOUSE. NOTICE OF THE OBJECTION MUST BE GIVEN TO THE GUARDIAN AND ANY OTHER PERSON ENTITLED TO NOTICE OF THE ACCEPTANCE OF THE APPOINTMENT. THE COURT MAY TREAT THE FILING OF AN OBJECTION AS A PETITION FOR THE APPOINTMENT OF A Page 130 of 432 TEMPORARY GUARDIAN PURSUANT TO SECTION 14-5310 OR FOR THE APPOINTMENT OF A LIMITED OR GENERAL GUARDIAN PURSUANT TO SECTION 14-5303 AND PROCEED ACCORDINGLY. D. ON PETITION OF THE APPOINTING PARENT OR SPOUSE AND A FINDING THAT THE APPOINTING PARENT OR SPOUSE WILL LIKELY BECOME UNABLE TO CARE FOR THE INCAPACITATED PERSON WITHIN TWO YEARS, BEFORE THE APPOINTMENT BECOMES EFFECTIVE, THE COURT MAY CONFIRM THE APPOINTING PARENT'S OR SPOUSE'S SELECTION OF A GUARDIAN AND TERMINATE THE RIGHTS OF OTHERS TO OBJECT. NOTICE MUST BE GIVEN TO THE GUARDIAN AND ANY OTHER PERSON ENTITLED TO NOTICE OF THE ACCEPTANCE OF THE APPOINTMENT. Sec.3.Title 14, chapter 5, article 3, Arizona Revised Statutes, is amended by adding sections 14-5301.01, 14-5301.02, 14-5301.03 and 14-5301.04, to read: 14-5301.01. APPOINTMENT OF GUARDIAN BY WILL OR OTHER WRITING; EFFECTIVENESS; ACCEPTANCE; CONFIRMATION A. THE APPOINTMENT OF A GUARDIAN PURSUANT TO SECTION 14-5301 IS EFFECTIVE ON THE DEATH OF THE APPOINTING PARENT OR SPOUSE, THE ADJUDICATION OF INCAPACITY OF THE APPOINTING PARENT OR SPOUSE OR A WRITTEN DETERMINATION BY A PHYSICIAN WHO HAS EXAMINED THE APPOINTING PARENT OR SPOUSE THAT THE APPOINTING PARENT OR SPOUSE IS NO LONGER ABLE TO CARE FOR THE INCAPACITATED PERSON, WHICHEVER FIRST OCCURS. B.A GUARDIAN APPOINTED PURSUANT TO SECTION 14-5301 IS ELIGIBLE TO ACT ON THE FILING OF AN ACCEPTANCE OF APPOINTMENT, WHICH MUST BE FILED WITHIN THIRTY DAYS AFTER THE GUARDIAN'S APPOINTMENT BECOMES EFFECTIVE. THE GUARDIAN MUST: 1.FILE THE NOTICE OF ACCEPTANCE OF APPOINTMENT AND A COPY OF THE WILL WITH THE COURT IN THE COUNTY IN WHICH THE WILL WAS OR COULD BE PROBATED OR, IN THE CASE OF A SIGNED WRITING CREATED PURSUANT TO SECTION 14-5301, FILE THE ACCEPTANCE OF APPOINTMENT AND THE SIGNED WRITING WITH THE COURT IN THE COUNTY IN WHICH THE INCAPACITATED PERSON RESIDES OR IS PRESENT. 2.GIVE WRITTEN NOTICE OF THE ACCEPTANCE OF APPOINTMENT TO THE APPOINTING PARENT OR SPOUSE, IF LIVING, THE INCAPACITATED PERSON, A PERSON HAVING CARE OR CUSTODY OF THE INCAPACITATED PERSON OTHER THAN THE APPOINTING PARENT OR SPOUSE, AND THE ADULT NEAREST IN KINSHIP. UNLESS THE APPOINTMENT WAS PREVIOUSLY CONFIRMED BY THE COURT, THE NOTICE GIVEN PURSUANT TO THIS PARAGRAPH MUST INCLUDE A STATEMENT OF THE RIGHT OF THOSE NOTIFIED TO TERMINATE THE APPOINTMENT BY FILING A WRITTEN OBJECTION AS PROVIDED IN SECTION 145301. Page 131 of 432 C. AN APPOINTMENT EFFECTED BY FILING THE GUARDIAN'S ACCEPTANCE UNDER A WILL PROBATED IN THE STATE OF THE TESTATOR'S DOMICILE IS EFFECTIVE IN THIS STATE. D. UNLESS THE APPOINTMENT WAS PREVIOUSLY CONFIRMED BY THE COURT, WITHIN THIRTY DAYS AFTER FILING THE NOTICE AND THE WILL OR SIGNED WRITING, A GUARDIAN APPOINTED PURSUANT TO SECTION 14-5301 MUST FILE A PETITION IN THE COURT FOR CONFIRMATION OF THE APPOINTMENT. NOTICE OF THE FILING MUST BE GIVEN IN THE MANNER AS PRESCRIBED IN SECTION 14-5309. E. THE AUTHORITY OF A GUARDIAN APPOINTED UNDER SECTION 14-5301 TERMINATES ON THE APPOINTMENT OF A GUARDIAN BY THE COURT OR THE GIVING OF WRITTEN NOTICE TO THE GUARDIAN OF THE FILING OF AN OBJECTION PURSUANT TO SECTION 14-5301, WHICHEVER FIRST OCCURS. F. THE APPOINTMENT OF A GUARDIAN UNDER THIS SECTION IS NOT A DETERMINATION OF INCAPACITY. G. THE POWERS OF A GUARDIAN WHO TIMELY COMPLIES WITH THE REQUIREMENTS OF SUBSECTIONS B AND D OF THIS SECTION GIVE ACTS BY THE GUARDIAN THAT ARE OF BENEFIT TO THE INCAPACITATED PERSON AND THAT OCCURRED ON OR AFTER THE DATE THE APPOINTMENT BECAME EFFECTIVE THE SAME EFFECT AS THOSE THAT OCCURRED AFTER THE FILING OF THE ACCEPTANCE OF APPOINTMENT. 14-5301.02. APPOINTMENT AND STATUS OF GUARDIAN A PERSON BECOMES A GUARDIAN OF AN INCAPACITATED PERSON BY A PARENTAL OR SPOUSAL APPOINTMENT OR ON APPOINTMENT BY THE COURT. THE GUARDIANSHIP CONTINUES UNTIL IT IS TERMINATED, WITHOUT REGARD TO THE LOCATION OF THE GUARDIAN OR THE WARD. 14-5301.03. JUDICIAL APPOINTMENT OF GUARDIAN; SPECIAL PROVISION FOR INCAPACITATED MINORS APPROACHING ADULTHOOD A. A PARTY THAT IS INTERESTED IN THE WELFARE OF A MINOR WHO IS AT LEAST SEVENTEEN YEARS SIX MONTHS OF AGE AND WHO IS ALLEGED TO BE INCAPACITATED MAY INITIATE GUARDIANSHIP PROCEEDINGS PURSUANT TO THIS ARTICLE AND REQUEST THAT ANY GUARDIANSHIP ORDER TAKE EFFECT IMMEDIATELY ON THE MINOR'S EIGHTEENTH BIRTHDAY. B. THE PETITIONER MAY PROVIDE WITH THE PETITION A REPORT OF AN EVALUATION OF THE MINOR BY A PHYSICIAN, PSYCHOLOGIST OR REGISTERED NURSE THAT MEETS THE REQUIREMENTS OF SECTION 14-5303, SUBSECTION D. IF Page 132 of 432 THE EVALUATION WAS CONDUCTED WITHIN SIX MONTHS AFTER THE DATE THE PETITION IS FILED WITH THE COURT, THE PETITIONER MAY ASK IN THE PETITION THAT THE COURT ACCEPT THIS REPORT IN LIEU OF ORDERING ANY ADDITIONAL EVALUATION PURSUANT TO SECTION 14-5303, SUBSECTION C, AND THE COURT MAY GRANT THE REQUEST. 14-5301.04. JUDICIAL APPOINTMENT OF CONSERVATOR OR PROTECTIVE ORDER; SPECIAL PROVISION FOR INCAPACITATED MINORS APPROACHING ADULTHOOD A PARTY THAT IS INTERESTED IN THE WELFARE OF A MINOR WHO IS AT LEAST SEVENTEEN YEARS SIX MONTHS OF AGE AND WHO IS ALLEGED TO BE IN NEED OF PROTECTION MAY PETITION THE COURT FOR APPOINTMENT OF A CONSERVATOR OR REQUEST AN APPROPRIATE PROTECTIVE ORDER PURSUANT TO SECTION 14-5404 AND REQUEST THAT ANY CONSERVATORSHIP ORDER OR PROTECTIVE ORDER TAKE EFFECT IMMEDIATELY ON THE MINOR'S EIGHTEENTH BIRTHDAY. Sec.4. Section 14-5303, Arizona Revised Statutes, is amended to read: 14-5303. PROCEDURE FOR COURT APPOINTMENT OF A GUARDIAN OF AN ALLEGED INCAPACITATED PERSON A. The alleged incapacitated person or any person interested in that person's affairs or welfare may petition for the appointment of a guardian or for any other appropriate protective order. B. The petition shall contain a statement that the authority granted to the guardian may include the authority to withhold or withdraw life sustaining treatment, including artificial food and fluid, and shall state, to the extent known: 1. The interest of the petitioner. 2. The name, age, residence and address of the alleged incapacitated person. 3. The name, address and priority for appointment of the person whose appointment is sought. 4. The name and address of the conservator, if any, of the alleged incapacitated person. 5. The name and address of the nearest relative of the alleged incapacitated person known to the petitioner. 6. A general statement of the property of the alleged incapacitated person, with an estimate of its value and including any compensation, insurance, pension or allowance to which the person is entitled. Page 133 of 432 7. The reason why appointment of a guardian or any other protective order is necessary. 8. The type of guardianship requested. If a general guardianship is requested, the petition must state that other alternatives have been explored and why a limited guardianship is not appropriate. If a limited guardianship is requested, the petition also must state what specific powers are requested. 9. IF A CUSTODIAL ORDER WAS PREVIOUSLY ENTERED REGARDING AN ALLEGED INCAPACITATED PERSON IN A CHILD CUSTODY ACTION OR SIMILAR PROCEEDING IN THIS STATE OR ANOTHER JURISDICTION AND THE PETITIONER OR PROPOSED GUARDIAN IS A PARENT OR NONPARENT CUSTODIAN OF THE ALLEGED INCAPACITATED PERSON, THE COURT AND CASE NUMBER FOR THAT ACTION OR PROCEEDING. C. On the filing of a petition, the court shall set a hearing date on the issues of incapacity. Unless the alleged incapacitated person is represented by independent counsel, the court shall appoint an attorney to represent that person in the proceeding. The alleged incapacitated person shall be interviewed by an investigator appointed by the court and shall be examined by a physician, psychologist or registered nurse appointed by the court. The investigator and the person conducting the examination shall submit their reports in writing to the court. In addition to information required under subsection D, the court may direct that either report include other information the court deems appropriate. The investigator also shall interview the person seeking appointment as guardian, visit the present place of abode of the alleged incapacitated person and the place where it is proposed that the person will be detained or reside if the requested appointment is made and submit a report in writing to the court. The alleged incapacitated person is entitled to be present at the hearing and to see or hear all evidence bearing on that person's condition. The alleged incapacitated person is entitled to be represented by counsel, to present evidence, to cross-examine witnesses, including the court-appointed examiner and investigator, and to trial by jury. The court may determine the issue at a closed hearing if the alleged incapacitated person or that person's counsel so requests. D. A report filed pursuant to this section by a physician, psychologist or registered nurse acting within that person's scope of practice shall include the following information: 1. A specific description of the physical, psychiatric or psychological diagnosis of the person. 2. A comprehensive assessment listing any functional impairments of the alleged incapacitated person and an explanation of how and to what extent these functional impairments may prevent that person from receiving or evaluating information in making decisions or in communicating informed decisions regarding that person. 3. An analysis of the tasks of daily living the alleged incapacitated person is capable of performing without direction or with minimal direction. Page 134 of 432 4. A list of all medications the alleged incapacitated person is receiving, the dosage of the medications and a description of the effects each medication has on the person's behavior to the best of the declarant's knowledge. 5. A prognosis for improvement in the alleged incapacitated person's condition and a recommendation for the most appropriate rehabilitation plan or care plan. 6. Other information the physician, psychologist or registered nurse deems appropriate. Sec. 5. Section 14-5401, Arizona Revised Statutes, is amended to read: 14-5401. PROTECTIVE PROCEEDINGS A. Upon ON petition and after notice and a hearing in accordance with the provisions of PURSUANT TO this article, the court may appoint a conservator or make another protective order for cause as follows: 1. Appointment of a conservator or other protective order may be made in relation to the estate and affairs of a minor if the court determines that a minor owns money or property that requires management or protection which THAT cannot otherwise be provided or has or may have affairs which THAT may be jeopardized or prevented by his minority or that funds are needed for his THE MINOR’S support and education and that protection is necessary or desirable to obtain or provide funds. 2. Appointment of a conservator or other protective order may be made in relation to the estate and affairs of a person if the court determines both of the following: (a) The person is unable to manage the person's estate and affairs effectively for reasons such as mental illness, mental deficiency, mental disorder, physical illness or disability, chronic use of drugs, chronic intoxication, confinement, detention by a foreign power or disappearance. (b) The person has property which THAT will be wasted or dissipated unless proper management is provided, or that funds are needed for the support, care and welfare of the person or those entitled to be supported by the person and that protection is necessary or desirable to obtain or provide funds. B. ON PETITION AND AFTER NOTICE AND A HEARING PURSUANT TO THIS ARTICLE, THE COURT MAY CONTINUE A CONSERVATORSHIP OR OTHER PROTECTIVE ORDER ENTERED PURSUANT TO SUBSECTION A, PARAGRAPH 1 OF THIS SECTION BEYOND THE MINOR'S EIGHTEENTH BIRTHDAY IF THE COURT DETERMINES THAT THE ORDER IS APPROPRIATE PURSUANT TO SUBSECTION A, PARAGRAPH 2 OF THIS SECTION. THE PETITION SHALL COMPLY WITH THE REQUIREMENTS OF SECTION 14-5404, SUBSECTION B AND MUST BE FILED AFTER THE MINOR'S SEVENTEENTH BIRTHDAY AND BEFORE TERMINATION OF THE CONSERVATORSHIP BY COURT ORDER. Page 135 of 432 Sec. 6. Section 14-5405, Arizona Revised Statutes, is amended to read: 14-5405. NOTICE IN CONSERVATORSHIP PROCEEDINGS A. In a proceeding for the appointment or removal of a conservator of a protected person or person allegedly in need of protection, other than the appointment of a temporary conservator or temporary suspension of a conservator, AND IN A PROCEEDING TO CONTINUE A CONSERVATORSHIP OR OTHER PROTECTIVE ORDER PURSUANT TO SECTION 145401, SUBSECTION B, notice of the hearing shall be given to each of the following: 1. The protected person or the person allegedly in need of protection if that person is fourteen years of age or older. 2. The spouse, parents and adult children of the protected person or person allegedly in need of protection, or if no spouse, parents or adult children can be located, at least one adult relative of the protected person or the person allegedly in need of protection, if such a relative can be found. 3. Any person who is serving as guardian or conservator or who has the care and custody of the protected person or person allegedly in need of protection. 4. Any person who has filed a demand for notice. B. At least fourteen days before the hearing notice shall be served personally on the protected person or the person allegedly in need of protection and that person's spouse and parents if they can be found within the state. Notice to the spouse and parents, if they cannot be found within the state, and to all other persons except the protected person or the person allegedly in need of protection shall be given in accordance with section 14-1401. Waiver of notice by the protected person or the person allegedly in need of protection is not effective unless the protected person or the person allegedly in need of protection attends the hearing. Sec. 7. Section 14-5407, Arizona Revised Statutes, is amended to read: 14-5407. PROCEDURE CONCERNING HEARING AND ORDER ON ORIGINAL PETITION A. On the filing of a petition for appointment of a conservator or any other protective order because of minority, the court shall set a hearing date on the matters alleged in the petition. If, at any time in the proceeding, the court determines that the interests of the minor are or may be inadequately represented, it shall appoint an attorney to represent the minor. If the minor is at least fourteen years of age the court shall consider the choice of the minor. B. On the filing of a petition for appointment of a conservator or any other protective order for reasons other than minority, OR ON THE FILING OF A PETITION FOR CONTINUATION OF A CONSERVATORSHIP OR OTHER PROTECTIVE ORDER PURSUANT TO SECTION 14-5401, SUBSECTION B, the court shall set a hearing date. Unless the person to be protected has counsel of his THAT PERSON'S own choice, the court shall appoint an attorney to represent him THAT PERSON. If the alleged disability is mental illness, mental deficiency, mental Page 136 of 432 disorder, physical illness or disability, chronic use of drugs, or chronic intoxication, the court shall appoint an investigator to interview the person to be protected. On petition by an interested person or on the court's own motion, the court may direct that an appropriate medical or psychological evaluation of the person be conducted. The investigator and the person conducting the medical or psychological evaluation shall submit written reports to the court before the hearing date. C. In any case where the veterans administration is or may be an interested party, a certificate of an authorized official of the veterans administration that the person allegedly in need of protection has been found incapable of handling the benefits payable, on examination in accordance with the laws and regulations governing the veterans administration, is prima facie evidence of the necessity for appointment of a conservator. D. The person allegedly in need of protection is entitled to be present at the hearing, to be represented by counsel, to present evidence and to cross-examine witnesses, including any court appointed examiner and investigator. The issue may be determined at a closed hearing if the person allegedly in need of protection or that person's counsel so requests. E. After the hearing, upon ON a finding that a basis for the appointment of a conservator or any other protective order has been established, the court shall make an appointment or other appropriate protective order. Sec. 8. Section 14-5416, Arizona Revised Statutes, is amended to read: 14-5416. PETITIONS FOR ORDERS SUBSEQUENT TO APPOINTMENT A. Any person interested in the estate or affairs of a person for whom a conservator has been appointed may file a petition in the appointing court for an order: 1. Requiring bond or security or additional bond or security, or reducing bond. 2. Requiring an accounting for the administration of the estate of the protected person. 3. Directing distribution. 4. Removing the conservator and appointing a temporary or successor conservator. 5. CONTINUING THE CONSERVATORSHIP PURSUANT TO SECTION 14-5401, SUBSECTION B. 5. 6. Granting other appropriate relief. B. A conservator may petition the appointing court for instructions concerning the fiduciary's responsibility. C. Upon ON notice and a hearing the court may give appropriate instructions or make any appropriate order. Page 137 of 432 D. When a surety of a conservator desires to be released from responsibility for future acts, the surety may apply to the court for a release. The court shall proceed in the same manner as in a proceeding under section 14-3604, subsection B. Notice shall be given to the conservator as provided in section 14-5413. Sec. 9. Section 14-5430, Arizona Revised Statutes, is amended to read: 14-5430. TERMINATION OF PROCEEDING A. The protected person, the conservator or any other interested person may petition the court to terminate the conservatorship. A protected person seeking termination is entitled to the same rights and procedures as in an original proceeding for a protective order. B. The court, upon ON determining after notice and a hearing that the minority or disability of the protected person has ceased, shall terminate the conservatorship UNLESS THE COURT HAS CONTINUED THE CONSERVATORSHIP OR OTHER PROTECTIVE ORDER PURSUANT TO SECTION 14-5401, SUBSECTION B. C. Upon ON termination, title to assets of the estate passes to the formerly protected person or to the person's successors. The order of termination shall provide for expenses of administration and shall direct the conservator to execute appropriate instruments to evidence the transfer. Page 138 of 432 Appendix D Risk Assessment Form, Instructions, & Order Page 139 of 432 Page 140 of 432 Page 141 of 432 Page 142 of 432 Page 143 of 432 Page 144 of 432 Page 145 of 432 Page 146 of 432 Page 147 of 432 Page 148 of 432 Page 149 of 432 Page 150 of 432 Page 151 of 432 Page 152 of 432 Page 153 of 432 Page 154 of 432 Page 155 of 432 Page 156 of 432 Page 157 of 432 Page 158 of 432 Page 159 of 432 Page 160 of 432 Page 161 of 432 Page 162 of 432 Appendix E SENATE BILL 1499 AN AC AMENDING TITLE 14, CHAPTER 1, ARTICLE 1, ARIZONA REVISED STATUTES, BY ADDING SECTIONS 14-1101, 14-1104, 14-1105, 14-1108 AND 14-1109; AMENDING SECTIONS 14-1201 AND 14-5108, ARIZONA REVISED STATUTES; AMENDING TITLE 14, CHAPTER 5, ARTICLE 1, ARIZONA REVISED STATUTES, BY ADDING SECTIONS 14-5109 AND 14-5110; AMENDING SECTIONS 14-5303, 14-5304, 14-5306, 14-5307, 14-5308, 14-5309, 14-5310, 14-5311, 14-5313, 14-5315, 14-5401, 14-5401.01, 14-5404, 14-5405, 14-5407 AND 14-5410, ARIZONA REVISED STATUTES; REPEALING SECTION 14-5415, ARIZONA REVISED STATUTES; AMENDING TITLE 14, CHAPTER 5, ARTICLE 4, ARIZONA REVISED STATUTES, BY ADDING A NEW SECTION 14-5415; AMENDING SECTIONS 14-5418, 14-5419, 14-5651, 14-5652 AND 14-10706, ARIZONA REVISED STATUTES; RELATING TO PROBATE. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ARIZONA: SECTION 1. TITLE 14, CHAPTER 1, ARTICLE 1, ARIZONA REVISED STATUTES, IS AMENDED BY ADDING SECTIONS 14-1101, 14-1104, 14-1105, 14-1108 AND 14-1109, TO READ: 14-1101. TRAINING A JUDICIAL OFFICER PRESIDING OVER PROCEEDINGS BROUGHT PURSUANT TO THIS TITLE MUST PARTICIPATE IN TRAINING AS PRESCRIBED BY THE SUPREME COURT. 14-1104. PRUDENT MANAGEMENT OF COSTS IN A PROCEEDING BROUGHT PURSUANT TO THIS TITLE: 1. THE FIDUCIARY MUST PRUDENTLY MANAGE COSTS, PRESERVE THE ASSETS OF THE WARD OR PROTECTED PERSON FOR THE BENEFIT OF THE WARD OR PROTECTED PERSON AND PROTECT AGAINST INCURRING ANY COSTS THAT EXCEED PROBABLE BENEFITS TO THE WARD, PROTECTED PERSON, DECEDENT'S ESTATE OR TRUST, EXCEPT AS OTHERWISE DIRECTED BY A GOVERNING INSTRUMENT OR COURT ORDER. 2. A GUARDIAN AD LITEM, FIDUCIARY, FIDUCIARY'S ATTORNEY AND ATTORNEY FOR THE WARD OR PROTECTED PERSON HAVE A DUTY TO: (A) ACT IN THE BEST INTEREST OF THE WARD OR PROTECTED PERSON. Page 163 of 432 (B) AVOID ENGAGING IN EXCESSIVE OR UNPRODUCTIVE ACTIVITIES. (C) AFFIRMATIVELY ASSESS THE FINANCIAL COST OF PURSUING ANY ACTION COMPARED TO THE REASONABLY EXPECTED BENEFIT TO THE WARD OR PROTECTED PERSON. 3. MARKET RATES FOR GOODS AND SERVICES ARE A PROPER, ONGOING CONSIDERATION FOR THE FIDUCIARY AND THE COURT DURING THE INITIAL COURT APPOINTMENT OF A FIDUCIARY OR ATTORNEY AND RELATING TO A REQUEST TO SUBSTITUTE A COURT-APPOINTED FIDUCIARY OR ATTORNEY. 14-1105. REMEDIES DEFINITIONS FOR UNREASONABLE OR ABUSIVE CONDUCT; A. IF THE COURT FINDS THAT A DECEDENT'S ESTATE OR TRUST HAS INCURRED PROFESSIONAL FEES OR EXPENSES AS A RESULT OF UNREASONABLE CONDUCT, THE COURT MAY ORDER THE PERSON WHO ENGAGED IN THE CONDUCT OR THE PERSON'S ATTORNEY, OR BOTH, TO PAY THE DECEDENT'S ESTATE OR TRUST FOR SOME OR ALL OF THE FEES AND EXPENSES AS THE COURT DEEMS JUST UNDER THE CIRCUMSTANCES. B. IN A GUARDIANSHIP OR CONSERVATORSHIP CASE, IF THE COURT FINDS THAT A WARD OR PROTECTED PERSON HAS INCURRED PROFESSIONAL FEES OR EXPENSES AS A RESULT OF UNREASONABLE CONDUCT, THE COURT MAY ORDER THE PERSON WHO ENGAGED IN THE CONDUCT OR THE PERSON'S ATTORNEY, OR BOTH, TO PAY THE WARD OR PROTECTED PERSON FOR SOME OR ALL OF THE FEES AND EXPENSES AS THE COURT DEEMS JUST UNDER THE CIRCUMSTANCES. C. THE REMEDIES PERMITTED PURSUANT TO THIS SECTION ARE IN ADDITION TO ANY OTHER CIVIL REMEDY OR ANY OTHER PROVISION OF LAW. THE REMEDIES PERMITTED PURSUANT TO THIS SECTION MAY BE INVOKED TO MITIGATE THE FINANCIAL BURDEN ON A WARD, PROTECTED PERSON, DECEDENT'S ESTATE OR TRUST INCURRED AS A RESULT OF UNJUSTIFIED COURT PROCEEDINGS OR UNREASONABLE OR EXCESSIVE DEMANDS MADE ON A FIDUCIARY, FIDUCIARY'S ATTORNEY, COURT-APPOINTED ATTORNEY OR REPRESENTATIVE. D. FOR THE PURPOSES OF THIS SECTION: 1. "COURT-APPOINTED ATTORNEY" MEANS AN ATTORNEY APPOINTED PURSUANT TO SECTION 14-5303, SUBSECTION C, SECTION 14-5310, SUBSECTION C, SECTION 14-5401.01, SUBSECTION C OR SECTION 14-5407, SUBSECTION B. 2. "FIDUCIARY" MEANS AN AGENT UNDER A DURABLE POWER OF ATTORNEY, AN AGENT UNDER A HEALTH CARE POWER OF ATTORNEY, A GUARDIAN, A Page 164 of 432 CONSERVATOR, A PERSONAL REPRESENTATIVE, A TRUSTEE OR A GUARDIAN AD LITEM. 3. "PERSON WHO ENGAGED IN THE CONDUCT" INCLUDES A FIDUCIARY, AN ATTORNEY OR A GUARDIAN AD LITEM. 4. "PROFESSIONAL" MEANS AN ACCOUNTANT, AN ATTORNEY, A FIDUCIARY, A PHYSICIAN, A PSYCHOLOGIST, A REGISTERED NURSE, A GUARDIAN AD LITEM OR AN EXPERT WITNESS. 5. "PROFESSIONAL FEES OR EXPENSES" INCLUDES THE FIDUCIARY'S FEES AND EXPENSES AND THE FIDUCIARY'S ATTORNEY FEES AND EXPENSES, AS WELL AS THE FEES AND EXPENSES OF ANY OTHER PROFESSIONALS HIRED BY THE FIDUCIARY OR THE FIDUCIARY'S ATTORNEY. 14-1108. ARBITRATION OF DISPUTES; ALTERNATIVE DISPUTE RESOLUTION IN A PROCEEDING BROUGHT PURSUANT TO THIS TITLE, AFTER THE INITIAL APPOINTMENT OF A FIDUCIARY, THE COURT MAY REQUIRE ARBITRATION OF A DISPUTE PURSUANT TO THE REQUIREMENTS OF SECTION 12-133, SUBSECTIONS B THROUGH K, OR ORDER ALTERNATIVE DISPUTE RESOLUTION. 14-1109. REPETITIVE FILINGS; SUMMARY DENIAL IF AN INTERESTED PERSON FILES A MOTION OR PETITION THAT REQUESTS THE SAME OR SUBSTANTIALLY SIMILAR RELIEF TO THE RELIEF REQUESTED IN ANOTHER MOTION OR PETITION FILED BY THE SAME INTERESTED PERSON WITHIN THE PRECEDING TWELVE MONTHS AND IF THE LATER FILED MOTION OR PETITION DOES NOT DESCRIBE IN DETAIL A CHANGE IN FACT OR CIRCUMSTANCE THAT SUPPORTS THE REQUESTED RELIEF, THE COURT MAY SUMMARILY DENY THE MOTION OR PETITION WITHOUT A RESPONSE OR OBJECTION BEING FILED AND WITHOUT A HEARING OR ORAL ARGUMENT BEING SET. Sec. 2. Section 14-1201, Arizona Revised Statutes, is amended to read: 14-1201. Definitions In this title, unless the context otherwise requires: 1. "Agent" includes an attorney-in-fact under a durable or nondurable power of attorney, a person who is authorized to make decisions concerning another person's health care and a person who is authorized to make decisions for another person under a natural death act. Page 165 of 432 2. "Application" means a written request to the registrar for an order of informal probate or appointment under chapter 3, article 3 of this title. 3. "BASIS FOR COMPENSATION" MEANS HOURLY RATE, A FIXED FEE OR A CONTINGENCY FEE AGREEMENT AND REIMBURSABLE COSTS. 3. 4. "Beneficiary", as it relates to a trust beneficiary, includes a person who has any present or future interest, vested or contingent, and also includes the owner of an interest by assignment or other transfer. As it relates to a charitable trust, beneficiary includes any person entitled to enforce the trust. As it relates to a beneficiary of a beneficiary designation, beneficiary refers to a beneficiary of an insurance or annuity policy, an account with pay on death designation, a security registered in beneficiary form or a pension, profit sharing, retirement or similar benefit plan, or any other nonprobate transfer at death. As it relates to a beneficiary designated in a governing instrument, beneficiary includes a grantee of a deed, a devisee, a trust beneficiary, a beneficiary of a beneficiary designation, a donee, appointee or taker in default of a power of appointment and a person in whose favor a power of attorney or a power held in any person, fiduciary or representative capacity is exercised. 4. 5. "Beneficiary designation" refers to a governing instrument naming a beneficiary of an insurance or annuity policy, of an account with pay on death designation, of a security registered in beneficiary form or of a pension, profit sharing, retirement or similar benefit plan, or any other nonprobate transfer at death. 5. 6. "Child" includes a person who is entitled to take as a child under this title by intestate succession from the parent whose relationship is involved. Child excludes a person who is only a stepchild, a foster child, a grandchild or a more remote descendant. 6. 7. "Claims", in respect to estates of decedents and protected persons, includes liabilities of the decedent or the protected person, whether arising in contract, in tort or otherwise, and liabilities of the estate that arise at or after the death of the decedent or after the appointment of a conservator, including funeral expenses and expenses of administration. Claims do not include estate or inheritance taxes or demands or disputes regarding title of a decedent or a protected person to specific assets alleged to be included in the estate. 7. 8. "Community property" means that property of a husband and wife that is acquired during the marriage and that is community property as prescribed in section 25-211. 8. 9. "Conservator" means a person who is appointed by a court to manage the estate of a protected person. 9. 10. "Court" means the superior court. 10. 11. "Dependent child" means a minor child who WHOM the decedent was obligated to support or an adult child who was in fact being supported by the decedent at the time of the decedent's death. Page 166 of 432 11. 12. "Descendant" means all of the decedent's descendants of all generations, with the relationship of parent and child at each generation. 12. 13. "Devise", when used as a noun, means a testamentary disposition of real or personal property and, when used as a verb, means to dispose of real or personal property by will. 13. 14. "Devisee" means a person designated in a will to receive a devise. For the purposes of chapter 3 of this title, in the case of a devise to an existing trust or trustee, or to a trustee on trust described by will, the trust or trustee is the devisee and the beneficiaries are not devisees. 14. 15. "Disability" means cause for a protective order as described in section 14-5401. 15. 16. "Distributee" means any person who has received property of a decedent from that person's personal representative other than as a creditor or purchaser. Distributee includes a testamentary trustee only to the extent of distributed assets or increment that remains in that person's hands. A beneficiary of a testamentary trust to whom the trustee has distributed property received from a personal representative is a distributee of the personal representative. For the purposes of this paragraph, "testamentary trustee" includes a trustee to whom assets are transferred by will, to the extent of the devised assets. 16. 17. "Estate" includes the property of the decedent, trust or other person whose affairs are subject to this title as originally constituted and as it exists from time to time during administration. As it relates to a spouse, the estate includes only the separate property and the share of the community property belonging to the decedent or person whose affairs are subject to this title. 17. 18. "Exempt property" means that property of a decedent's estate that is described in section 14-2403. 18. 19. "Fiduciary" includes a personal representative, guardian, conservator and trustee. 19. 20. "Foreign personal representative" means a personal representative appointed by another jurisdiction. 20. 21. "Formal proceedings" means proceedings conducted before a judge with notice to interested persons. 21. 22. "Governing instrument" means a deed, will, trust, insurance or annuity policy, account with pay on death designation, security registered in beneficiary form, pension, profit sharing, retirement or similar benefit plan, instrument creating or exercising a power of appointment or a power of attorney or a dispositive, appointive or nominative instrument of any similar type. 22. 23. "Guardian" means a person who has qualified as a guardian of a minor or incapacitated person pursuant to testamentary or court appointment but excludes a person who is merely a guardian ad litem. Page 167 of 432 24. "GUARDIAN AD LITEM" INCLUDES A PERSON WHO IS APPOINTED PURSUANT TO SECTION 14-1408. 23. 25. "Heirs", except as controlled by section 14-2711, means persons, including the surviving spouse and the state, who are entitled under the statutes of intestate succession to the property of a decedent. 24. 26. "Incapacitated person" has the same meaning prescribed in section 14-5101. 25. 27. "Informal proceedings" means those proceedings conducted without notice to interested persons by an officer of the court acting as a registrar for probate of a will or appointment of a personal representative. 26. 28. "Interested person" includes any trustee, heir, devisee, child, spouse, creditor, beneficiary, person holding a power of appointment and other person who has a property right in or claim against a trust estate or the estate of a decedent, ward or protected person. Interested person also includes a person who has priority for appointment as personal representative and other fiduciaries representing interested persons. Interested person, as the term relates to particular persons, may vary from time to time and must be determined according to the particular purposes of, and matter involved in, any proceeding. 27. 29. "Issue" of a person means descendant as defined in this section. 28. 30. "Joint tenants with the right of survivorship" and "community property with the right of survivorship" includes co-owners of property held under circumstances that entitle one or more to the whole of the property on the death of the other or others but excludes forms of co-ownership registration in which the underlying ownership of each party is in proportion to that party's contribution. 29. 31. "Lease" includes any oil, gas or other mineral lease. 30. 32. "Letters" includes letters testamentary, letters of guardianship, letters of administration and letters of conservatorship. 31. 33. "Minor" means a person who is under eighteen years of age. 32. 34. "Mortgage" means any conveyance, agreement or arrangement in which property is encumbered or used as security. Mortgage does not include leases or easements. 33. 35. "Nonresident decedent" means a decedent who was domiciled in another jurisdiction at the time of the decedent's death. 34. 36. "Organization" means a corporation, limited liability company, business trust, estate, trust, partnership, joint venture, association, government or governmental subdivision or agency or any other legal or commercial entity. Page 168 of 432 35. 37. "Parent" includes any person entitled to take, or who would be entitled to take if the child died without a will, as a parent under this title by intestate succession from the child whose relationship is in question and excludes any person who is only a stepparent, foster parent or grandparent. 36. 38. "Payor" means a trustee, insurer, business entity, employer, government, governmental agency or subdivision or any other person who is authorized or obligated by law or a governing instrument to make payments. 37. 39. "Person" means an individual or an organization. 38. 40. "Personal representative" includes executor, administrator, successor personal representative, special administrator and persons who perform substantially the same function under the law governing their status. A general personal representative excludes a special administrator. 39. 41. "Petition" means a written request to the court for an order after notice. 40. 42. "Proceeding" includes action at law and suit in equity. 41. 43. "Property" has the same meaning prescribed in section 14-10103. 42. 44. "Protected person" has the same meaning prescribed in section 14-5101. 43. 45. "Protective proceeding" has the same meaning prescribed in section 14-5101. 44. 46. "Registrar" means the official of the court designated to perform the functions of registrar as provided in section 14-1307. 45. 47. "Security" includes any note, stock, treasury stock, bond, debenture, evidence of indebtedness, certificate of interest or participation in an oil, gas or mining title or lease or in payments out of production under that title or lease, collateral trust certificate, transferable share or voting trust certificate and, in general, includes any interest or instrument commonly known as a security, or any certificate of interest or participation, any temporary or interim certificate, receipt or certificate of deposit for, or any warrant or right to subscribe to or purchase, any of these securities. 46. 48. "Separate property" means that property of a husband or wife that is the spouse's separate property as defined in section 25-213. 47. 49. "Settlement", in reference to a decedent's estate, includes the full process of administration, distribution and closing. 48. 50. "Special administrator" means a personal representative as described by sections 14-3614 through 14-3618. Page 169 of 432 49. 51. "State" has the same meaning prescribed in section 14-10103. 50. 52. "Successor personal representative" means a personal representative, other than a special administrator, who is appointed to succeed a previously appointed personal representative. 51. 53. "Successors" means persons, other than creditors, who are entitled to property of a decedent under a will or this title. 52. 54. "Supervised administration" refers to the proceedings described in chapter 3, article 5 of this title. 53. 55. "Survive" means that a person has neither predeceased an event, including the death of another person, nor is deemed to have predeceased an event under section 14-2104 or 14-2702. 54. 56. "Testacy proceeding" means a proceeding to establish a will or determine intestacy. 55. 57. "Testator" includes a person of either sex. 56. 58. "Trust" includes an express trust, private or charitable, with any additions, wherever and however created. Trust also includes a trust created or determined by judgment or decree under which the trust is to be administered in the manner of an express trust. Trust excludes other constructive trusts and excludes resulting trusts, conservatorship, personal representatives, trust accounts, custodial arrangements pursuant to chapter 7, article 7 of this title, business trusts providing for certificates to be issued to beneficiaries, common trust funds, voting trusts, security arrangements, liquidation trusts and trusts for the primary purpose of paying debts, dividends, interest, salaries, wages, profits, pensions or employee benefits of any kind, trusts created by a city or town for the payment of medical insurance, health care benefits or expenses, long-term or short-term disability, self insurance reserves and similar programs administered by a city or town, legal defense trusts and any arrangement under which a person is nominee or escrowee for another. 57. 59. "Trustee" includes an original, additional or successor trustee, whether or not appointed or confirmed by THE court. 58. 60. "Ward" has the same meaning prescribed in section 14-5101. 59. 61. "Will" includes a codicil and any testamentary instrument that merely appoints an executor, revokes or revises another will, nominates a guardian or expressly excludes or limits the right of an individual or class to succeed to property of the decedent passing by intestate succession. Sec. 3. Section 14-5108, Arizona Revised Statutes, is amended to read: 14-5108. Guardianship of foreign citizens Page 170 of 432 The court may appoint an adult as the A guardian of a AN ADULT foreign citizen if all of the following are true: 1. The foreign citizen is under twenty-one years of age. 2. The foreign citizen has a temporary visa issued by the United States or is a legal permanent resident. Sec. 4. Title 14, chapter 5, article 1, Arizona Revised Statutes, is amended by adding sections 14-5109 and 14-5110, to read: 14-5109. DISCLOSURE OF COMPENSATION; DETERMINING REASONABLENESS AND NECESSITY A. WHEN A GUARDIAN, A CONSERVATOR, AN ATTORNEY OR A GUARDIAN AD LITEM WHO INTENDS TO SEEK COMPENSATION FROM THE ESTATE OF A WARD OR PROTECTED PERSON FIRST APPEARS IN THE PROCEEDING, THAT PERSON MUST GIVE WRITTEN NOTICE OF THE BASIS OF THE COMPENSATION BY FILING A STATEMENT WITH THE COURT AND PROVIDING A COPY OF THE STATEMENT TO ALL PERSONS ENTITLED TO NOTICE PURSUANT TO SECTIONS 14-5309 AND 14-5405. THE STATEMENT MUST PROVIDE A GENERAL EXPLANATION OF THE COMPENSATION ARRANGEMENT AND HOW THE COMPENSATION WILL BE COMPUTED. B. IF DURING THE PENDENCY OF THE ACTION THE BASIS FOR COMPENSATION CHANGES, THE GUARDIAN, CONSERVATOR, ATTORNEY OR GUARDIAN AD LITEM MUST PROVIDE NOTICE OF THE CHANGE TO ALL PERSONS ENTITLED TO NOTICE PURSUANT TO THIS SUBSECTION NOT LESS THAN THIRTY DAYS BEFORE THE CHANGE BECOMES EFFECTIVE. C. COMPENSATION PAID FROM AN ESTATE TO A GUARDIAN, CONSERVATOR, ATTORNEY OR GUARDIAN AD LITEM MUST BE REASONABLE AND NECESSARY. TO DETERMINE THE REASONABLENESS AND NECESSITY OF COMPENSATION, THE COURT MUST CONSIDER THE BEST INTEREST OF THE WARD OR PROTECTED PERSON. THE FOLLOWING FACTORS MAY BE CONSIDERED TO THE EXTENT APPLICABLE: 1. WHETHER THE SERVICES PROVIDED ANY BENEFIT OR ATTEMPTED TO ADVANCE THE BEST INTEREST OF THE WARD OR PROTECTED PERSON. 2. THE USUAL AND CUSTOMARY FEES CHARGED PROFESSIONAL COMMUNITY FOR THE SERVICES. 3. THE SIZE AND COMPOSITION OF THE ESTATE. Page 171 of 432 IN THE RELEVANT 4. THE EXTENT THAT THE SERVICES WERE PROVIDED IN A REASONABLE, EFFICIENT AND COST-EFFECTIVE MANNER. 5. WHETHER THERE WAS APPROPRIATE AND PRUDENT DELEGATION TO OTHERS. 6. ANY OTHER FACTORS BEARING ON THE REASONABLENESS OF FEES. D. THE PERSON SEEKING COMPENSATION HAS THE BURDEN OF PROVING THE REASONABLENESS AND NECESSITY OF COMPENSATION AND EXPENSES SOUGHT. 14-5110. CLAIM DEADLINE FOR COMPENSATION; DEFINITIONS A. IN A GUARDIANSHIP, CONSERVATORSHIP OR PROTECTIVE PROCEEDING, UNLESS A LATER CLAIM DEADLINE IS ESTABLISHED IN ADVANCE BY THE COURT, A CLAIM FOR COMPENSATION BY ATTORNEYS OR GUARDIANS AD LITEM WHO INTEND TO BE PAID BY THE WARD OR PROTECTED PERSON'S ESTATE IS WAIVED IF NOT SUBMITTED TO THE FIDUCIARY IN WRITING WITHIN FOUR MONTHS AFTER EITHER RENDERING THE SERVICE, INCURRING THE COST, INITIAL APPOINTMENT OF THE FIDUCIARY OR THE EFFECTIVE DATE OF THIS SECTION, WHICHEVER IS LATER. A CLAIM IS DEEMED SUBMITTED ON DELIVERY, MAILING OR ELECTRONIC TRANSMISSION TO THE FIDUCIARY. A SUBSEQUENT APPOINTMENT OF A SUBSTITUTE FIDUCIARY DOES NOT RENEW THE CLAIM PERIOD. B. THIS SECTION DOES NOT APPLY TO AN ATTORNEY SEEKING COMPENSATION BASED ON A CONTINGENCY FEE AGREEMENT. C. FOR THE PURPOSES OF THIS SECTION: 1. "COMPENSATION" INCLUDES FEES, COSTS AND REIMBURSABLE EXPENSES. 2. "ESTATE" INCLUDES ANY ESTATE ESTABLISHED PURSUANT TO THIS TITLE EXCEPT A TRUST UNLESS THE TRUST IS SUPERVISED BY THE COURT AND THE WARD OR PROTECTED PERSON IS A BENEFICIARY. Sec. 5. Section 14-5303, Arizona Revised Statutes, is amended to read: 14-5303. Procedure for court appointment of a guardian of an alleged incapacitated person A. The alleged incapacitated person or any person interested in that person's affairs or welfare may petition for the appointment of a guardian or for any other appropriate protective order. B. The petition shall contain a statement that the authority granted to the guardian may include the authority to withhold or withdraw life sustaining treatment, including artificial food and fluid, and shall state, AT A MINIMUM AND to the extent known, ALL OF THE FOLLOWING: Page 172 of 432 1. The interest of the petitioner. 2. The name, age, residence and address of the alleged incapacitated person. 3. The name, address and priority for appointment of the person whose appointment is sought. 4. The name and address of the conservator, if any, of the alleged incapacitated person. 5. The name and address of the nearest relative of the alleged incapacitated person known to the petitioner. 6. A general statement of the property of the alleged incapacitated person, with an estimate of its value and including any compensation, insurance, pension or allowance to which the person is entitled. 7. The reason why appointment of a guardian or any other protective order is necessary. 8. The type of guardianship requested. If a general guardianship is requested, the petition must state that other alternatives have been explored and why a limited guardianship is not appropriate. If a limited guardianship is requested, the petition also must state what specific powers are requested. C. On the filing of a petition, the court shall set a hearing date on the issues of incapacity. Unless the alleged incapacitated person is represented by independent counsel, the court shall appoint an attorney to represent that person in the proceeding. The alleged incapacitated person shall be interviewed by an investigator appointed by the court and shall be examined by a physician, psychologist or registered nurse appointed by the court. IF THE ALLEGED INCAPACITATED PERSON HAS AN ESTABLISHED RELATIONSHIP WITH A PHYSICIAN, PSYCHOLOGIST OR REGISTERED NURSE WHO IS DETERMINED BY THE COURT TO BE QUALIFIED TO EVALUATE THE CAPACITY OF THE ALLEGED INCAPACITATED PERSON, THE COURT MAY APPOINT THE ALLEGED INCAPACITATED PERSON'S PHYSICIAN, PSYCHOLOGIST OR REGISTERED NURSE PURSUANT TO THIS SUBSECTION. The investigator and the person conducting the examination shall submit their reports in writing to the court. In addition to information required under subsection D, the court may direct that either report include other information the court deems appropriate. The investigator also shall interview the person seeking appointment as guardian, visit the present place of abode of the alleged incapacitated person and the place where it is proposed that the person will be detained or reside if the requested appointment is made and submit a report in writing to the court. The alleged incapacitated person is entitled to be present at the hearing and to see or hear all evidence bearing on that person's condition. The alleged incapacitated person is entitled to be represented by counsel, to present evidence, to cross-examine witnesses, including the court-appointed examiner and investigator, and to trial by jury. The court may determine the issue at a closed hearing if the alleged incapacitated person or that person's counsel so requests. Page 173 of 432 D. A report filed pursuant to this section by a physician, psychologist or registered nurse acting within that person's scope of practice shall include the following information: 1. A specific description of the physical, psychiatric or psychological diagnosis of the person. 2. A comprehensive assessment listing any functional impairments of the alleged incapacitated person and an explanation of how and to what extent these functional impairments may prevent that person from receiving or evaluating information in making decisions or in communicating informed decisions regarding that person. 3. An analysis of the tasks of daily living the alleged incapacitated person is capable of performing without direction or with minimal direction. 4. A list of all medications the alleged incapacitated person is receiving, the dosage of the medications and a description of the effects each medication has on the person's behavior to the best of the declarant's knowledge. 5. A prognosis for improvement in the alleged incapacitated person's condition and a recommendation for the most appropriate rehabilitation plan or care plan. 6. Other information the physician, psychologist or registered nurse deems appropriate. Sec. 6. Section 14-5304, Arizona Revised Statutes, is amended to read: 14-5304. Findings; order of appointment; limitations; filing A. In exercising its appointment authority pursuant to this chapter, the court shall encourage the development of maximum self-reliance and independence of the incapacitated person. B. The court may appoint a general or limited guardian as requested if it is satisfied THE COURT FINDS by clear and convincing evidence that: 1. The person for whom a guardian is sought is incapacitated. 2. The appointment is necessary to provide for the demonstrated needs of the incapacitated person. 3. The person's needs cannot be met by less restrictive means, including the use of appropriate technological assistance. C. In conformity with the evidence regarding the extent of the ward's incapacity, the court may appoint a limited guardian and specify time limits on the guardianship and limitations on the guardian's powers. D. The guardian shall file an acceptance of appointment with the appointing court. Page 174 of 432 Sec. 7. Section 14-5306, Arizona Revised Statutes, is amended to read: 14-5306. Termination of guardianship for incapacitated person The authority and responsibility of a guardian for an incapacitated person terminates upon ON the death of the guardian or ward, a determination of incapacity of the guardian, or upon removal SUBSTITUTION or resignation as provided in section 14-5307. Testamentary appointment under an informally probated will terminates if the will is later denied probate in a formal proceeding. Termination does not affect his THE GUARDIAN'S liability for prior acts nor his OR THE GUARDIAN'S obligation to account for funds and assets of his THE GUARDIAN'S ward. Sec. 8. Section 14-5307, Arizona Revised Statutes, is amended to read: 14-5307. Substitution or resignation of guardian; termination of incapacity A. On petition of the ward or any person interested in his THE WARD'S welfare, OR ON THE COURT'S OWN INITIATIVE, the court may remove SHALL SUBSTITUTE a guardian and appoint a successor if it is in the best interests INTEREST of the ward. THE COURT DOES NOT NEED TO FIND THAT THE GUARDIAN ACTED INAPPROPRIATELY TO FIND THAT THE SUBSTITUTION IS IN THE WARD'S BEST INTEREST. THE GUARDIAN AND THE GUARDIAN'S ATTORNEY MAY BE COMPENSATED FROM THE WARD'S ESTATE FOR DEFENDING AGAINST A PETITION FOR SUBSTITUTION ONLY FOR THE AMOUNT ORDERED BY THE COURT AND ON PETITION BY THE GUARDIAN OR THE GUARDIAN'S ATTORNEY. WHEN SUBSTITUTING A GUARDIAN AND APPOINTING A SUCCESSOR, THE COURT MAY APPOINT AN INDIVIDUAL NOMINATED BY THE WARD IF THE WARD IS AT LEAST FOURTEEN YEARS OF AGE AND HAS, IN THE OPINION OF THE COURT, SUFFICIENT MENTAL CAPACITY TO MAKE AN INTELLIGENT CHOICE. On petition of the guardian, the court may accept a resignation and make any other order which THAT may be appropriate. B. An order adjudicating incapacity may specify a minimum period, not exceeding one year, during which no petition for an adjudication that the ward is no longer incapacitated may be filed without special leave. Subject to this restriction, the ward or any person interested in his welfare may petition the court for an order that the ward is no longer incapacitated and for the removal or resignation of the guardian. A request for this order may be made by informal letter to the court or judge. Any person who knowingly interferes with the transmission of this request may be found in contempt of court. B. THE WARD MAY PETITION THE COURT FOR AN ORDER THAT THE WARD IS NO LONGER INCAPACITATED OR PETITION FOR SUBSTITUTION OF THE GUARDIAN AT ANY TIME. A REQUEST FOR THIS ORDER MAY BE MADE BY INFORMAL LETTER TO THE COURT OR JUDGE. A PERSON WHO KNOWINGLY INTERFERES WITH THE TRANSMISSION OF THIS REQUEST MAY BE FOUND IN CONTEMPT OF COURT. Page 175 of 432 C. AN INTERESTED PERSON, OTHER THAN THE GUARDIAN OR WARD, SHALL NOT FILE A PETITION FOR ADJUDICATION THAT THE WARD IS NO LONGER INCAPACITATED EARLIER THAN ONE YEAR AFTER THE ORDER ADJUDICATING INCAPACITY WAS ENTERED UNLESS THE COURT PERMITS IT TO BE MADE ON THE BASIS OF AFFIDAVITS THAT THERE IS REASON TO BELIEVE THAT THE WARD IS NO LONGER INCAPACITATED. D. AN INTERESTED PERSON, OTHER THAN THE GUARDIAN OR WARD, SHALL NOT FILE A PETITION TO SUBSTITUTE A GUARDIAN EARLIER THAN ONE YEAR AFTER THE ORDER ADJUDICATING INCAPACITY WAS ENTERED UNLESS THE COURT PERMITS IT TO BE MADE ON THE BASIS OF AFFIDAVITS THAT THERE IS REASON TO BELIEVE THAT THE CURRENT GUARDIAN WILL ENDANGER THE WARD'S PHYSICAL, MENTAL OR EMOTIONAL HEALTH IF NOT SUBSTITUTED. C. E. Before removing SUBSTITUTING a guardian, accepting the resignation of a guardian or ordering that a ward's incapacity has terminated, the court, following the same procedures to safeguard the rights of the ward as apply to a petition for appointment of a guardian, may send an investigator to the residence of the present guardian and to the place where the ward resides or is detained to observe conditions and report in writing to the court. Sec. 9. Section 14-5308, Arizona Revised Statutes, is amended to read: 14-5308. Court appointed investigators; qualifications; duties A. An investigator appointed by the court under sections 14-5303 and 14-5407 shall have a background in law, nursing or social work and shall have no personal interest in the proceedings. B. The investigator shall conduct an investigation before the court appoints a guardian or a conservator to allow the court to determine the appropriateness of that appointment. As directed by the court, the investigator shall conduct additional investigations to determine if it is necessary to continue the appointment. C. In conducting investigations the investigator shall: 1. Interview the alleged incapacitated person or the protected person and the proposed guardian or conservator. 2. Visit the alleged incapacitated person's or the protected person's current or proposed place of residence. 3. Interview nursing home or care home care givers and the home's manager or administrator. 4. Transport the alleged incapacitated person or the protected person as directed by the court. D. In conducting interviews under this section the investigator may examine any court record, medical record or financial record that relates to the investigation. Page 176 of 432 E. As a condition of appointment as an investigator the court shall require the applicant to furnish a full set of fingerprints to enable the court to conduct a criminal background investigation to determine the applicant's suitability. The court shall submit the completed fingerprint card to the department of public safety. The department shall provide the applicant's criminal history record information to the court pursuant to section 41-1750. The department of public safety shall conduct criminal history records checks pursuant to section 41-1750 and applicable federal law. The department of public safety is authorized to submit fingerprint card information to the federal bureau of investigation for a national criminal history records check. F. AN INVESTIGATOR APPOINTED BY THE COURT PURSUANT TO SECTIONS 145303 AND 14-5407, AND ANY PERSON OR ENTITY CLOSELY RELATED TO THE INVESTIGATOR, SHALL NOT BE APPOINTED AS A FIDUCIARY, ATTORNEY OR PROFESSIONAL IN THE SAME CASE OR FOR THE SAME PERSON WHO WAS THE SUBJECT OF THE PRIOR INVESTIGATION UNLESS OTHERWISE ORDERED BY THE COURT FOR GOOD CAUSE. FOR THE PURPOSES OF THIS SUBSECTION, "CLOSELY RELATED" INCLUDES A SPOUSE, CHILD, PARENT, SIBLING, GRANDPARENT, AUNT, UNCLE OR COUSIN OF THE INVESTIGATOR AND ANY BUSINESS, PARTNERSHIP, CORPORATION, LIMITED LIABILITY COMPANY, TRUST OR OTHER ENTITY THAT THE INVESTIGATOR OR A CLOSELY RELATED PERSON HAS A FINANCIAL INTEREST IN, IS EMPLOYED BY OR RECEIVES COMPENSATION OR FINANCIAL BENEFIT FROM. Sec. 10. Section 14-5309, Arizona Revised Statutes, is amended to read: 14-5309. Notices in guardianship proceedings A. In a proceeding for the appointment or removal SUBSTITUTION of a guardian of a ward or an alleged incapacitated person other than the appointment of a temporary guardian or temporary suspension of a guardian, notice of a hearing shall be given to each of the following: 1. The ward or the alleged incapacitated person and that person's spouse, parents and adult children. 2. Any person who is serving as guardian or conservator or who has the care and custody of the ward or the alleged incapacitated person. 3. In case no other person is notified under paragraph 1 of this subsection, at least one of that person's closest adult relatives, if any can be found. 4. Any person who has filed a demand for notice. B. At least fourteen days before the hearing notice shall be served personally on the ward or the alleged incapacitated person, and that person's spouse and parents if they can be found within the state. Notice to the spouse and parents, if they cannot be found within the state, and to all other persons except the ward or the alleged incapacitated person shall be given as provided in section Page 177 of 432 14-1401. Waiver of notice by the ward or the alleged incapacitated person is not effective unless that person attends the hearing. Sec. 11. Section 14-5310, Arizona Revised Statutes, is amended to read: 14-5310. Temporary guardians; appointment; notice; court appointed attorney hearings; duties A. If an alleged incapacitated person has no guardian and an emergency exists or if an appointed guardian is not effectively performing the duties of a guardian and the welfare of the ward is found to require immediate action, the alleged incapacitated person, the ward or any person interested in the welfare of the alleged incapacitated person or the ward may petition for a finding of interim incapacity and for the appointment of a temporary guardian. No finding and appointment may be made without notice, pursuant to section 14-5309, except as provided in subsection B of this section. B. The court may enter a finding of interim incapacity and may appoint a temporary guardian without notice to the proposed ward or the proposed ward's attorney only if all of the following conditions are met: 1. It clearly appears from specific facts shown by an affidavit or by the verified petition that immediate and irreparable injury, loss or damage will result before the proposed ward or the proposed ward's attorney can be heard in opposition. 2. The petitioner or the petitioner's attorney certifies to the court in writing any efforts that the petitioner or the petitioner's attorney has made to give the notice or the reasons supporting the claim that notice should not be required. 3. The petitioner files with the court a request for a hearing on the petition for the appointment of a temporary guardian. 4. The petitioner or the petitioner's attorney certifies that that person will give notice of the petition, the order and all filed reports and affidavits to the proposed ward by personal service within the time period the court directs but not in excess of seventy-two hours following entry of the order of appointment. 5. The petitioner files a report from a physician, a registered nurse practitioner or a psychologist detailing the need for a guardian and the basis for the emergency unless the report is waived by the court on a showing of good cause by a party to the action. C. Unless the proposed ward is represented by independent counsel, the court shall appoint an attorney to represent the proposed ward in the proceeding on receipt of the petition for temporary appointment. The attorney shall visit the proposed ward as soon as practicable and shall be prepared to represent the interest of the proposed ward at any hearing on the petition. Page 178 of 432 D. Every order finding interim incapacity and appointing a temporary guardian granted without notice expires as prescribed by the court but within a period of not more than thirty days unless within that time the court extends it for good cause shown for the same period or unless the attorney for the ward consents that it may be extended for a longer period. The court shall enter the reasons for the extension on the record. E. The court shall schedule a hearing on the petition for a finding of interim incapacity and the appointment of a temporary guardian within the time specified in subsection D of this section. If the petitioner does not proceed with the petition the court, on the motion of any party or on its own motion, may dismiss the petition. F. If the court orders the appointment of a temporary guardian without notice, the ward may appear and move for its dissolution or modification on two days' notice to the petitioner and to the temporary guardian or on such shorter notice as the court prescribes. The court shall proceed to hear and determine that motion as expeditiously as possible. G. IF THE WARD OBJECTS TO THE PERSON WHO IS TEMPORARILY APPOINTED, THE COURT MAY APPOINT AN INDIVIDUAL NOMINATED BY THE PROPOSED WARD IF THE WARD IS AT LEAST FOURTEEN YEARS OF AGE AND HAS, IN THE OPINION OF THE COURT, SUFFICIENT MENTAL CAPACITY TO MAKE AN INTELLIGENT CHOICE. THE COURT SHALL APPOINT AN ALTERNATIVE GUARDIAN IF AVAILABLE AND AFTER FINDING THAT THE APPOINTMENT IS IN THE BEST INTEREST OF THE WARD. G. H. The hearing on a petition for the appointment of a temporary guardian shall be held in the same manner as a hearing on a preliminary injunction. The court may order the hearing on the petition for appointment of a permanent guardian to be advanced and consolidated with the hearing of the petition for temporary appointment. If the court does not order this consolidation any evidence received on a petition for temporary appointment that would be admissible at the hearing on a petition for a permanent appointment becomes part of the record and need not be repeated at a later hearing. This subsection does not limit the parties to any rights they may have to trial by jury. H. I. After notice and a hearing, if the court finds that a temporary guardian is necessary and the provisions of this section have been met, the court shall make an appointment of a temporary guardian for a specific purpose and for a specific period of time of not more than six months unless the court extends this time period for good cause shown. I. J. A temporary guardian is responsible to provide the care and custody of the ward. The authority of a permanent guardian previously appointed by the court is suspended as long as the temporary guardian has authority. A temporary guardian may be removed at any time. A temporary guardian shall make any report the court requires. In all other respects, the provisions of this title concerning guardians apply to temporary guardians. Sec. 12. Section 14-5311, Arizona Revised Statutes, is amended to read: Page 179 of 432 14-5311. Who may be guardian; priorities A. Any qualified person may be appointed guardian of an incapacitated person, subject to the requirements of section 14-5106. B. The court may consider the following persons for appointment as guardian in the following order: 1. A guardian or conservator of the person or a fiduciary appointed or recognized by the appropriate court of any jurisdiction in which the incapacitated person resides. 2. An individual or corporation nominated by the incapacitated person if the person has, in the opinion of the court, sufficient mental capacity to make an intelligent choice. 3. The person nominated TO SERVE AS GUARDIAN in the incapacitated person's most recent durable power of attorney OR HEALTH CARE POWER OF ATTORNEY. 4. The spouse of the incapacitated person. 5. An adult child of the incapacitated person. 6. A parent of the incapacitated person, including a person nominated by will or other writing signed by a deceased parent. 7. Any relative of the incapacitated person with whom the incapacitated person has resided for more than six months before the filing of the petition. 8. The nominee of a person who is caring for or paying benefits to the incapacitated person. 9. If the incapacitated person is a veteran, the spouse of a veteran or the minor child of a veteran, the department of veterans' services. 10. A fiduciary, WHO IS LICENSED PURSUANT TO SECTION 14-5651 guardian or conservator, OTHER THAN A PUBLIC FIDUCIARY. 11. A PUBLIC FIDUCIARY WHO IS LICENSED PURSUANT TO SECTION 14-5651. C. A person listed in subsection B, paragraph 4, 5, 6, 7 or 8 OF THIS SECTION may nominate in writing a person to serve in that person's place. With respect to persons who have equal priority, the court shall select the one the court determines is best qualified to serve. D. For good cause the court may pass over a person who has priority and appoint a person who has a lower priority or no priority. FOR THE PURPOSES OF THIS SUBSECTION, "GOOD CAUSE" INCLUDES A DETERMINATION THAT: Page 180 of 432 1. THE INCAPACITATED PERSON'S DURABLE POWER OF ATTORNEY OR HEALTH CARE POWER OF ATTORNEY IS INVALID. 2. HONORING THE INCAPACITATED PERSON'S DURABLE POWER OF ATTORNEY OR HEALTH CARE POWER OF ATTORNEY WOULD NOT BE IN THE PHYSICAL, EMOTIONAL OR FINANCIAL BEST INTEREST OF THE INCAPACITATED PERSON. 3. THE ESTIMATED COST OF THE FIDUCIARY AND ASSOCIATED PROFESSIONAL FEES WOULD ADVERSELY AFFECT THE ABILITY OF THE INCAPACITATED PERSON'S ESTATE TO PROVIDE FOR THE INCAPACITATED PERSON'S REASONABLE AND NECESSARY LIVING EXPENSES. E. ON A REQUEST BY A PERSON WHO WAS PASSED OVER BY THE COURT PURSUANT TO SUBSECTION D OF THIS SECTION, THE COURT SHALL MAKE A SPECIFIC FINDING REGARDING THE COURT'S DETERMINATION OF GOOD CAUSE AND WHY THE PERSON WAS NOT APPOINTED. THE REQUEST MUST BE MADE WITHIN TEN DAYS AFTER THE ENTRY OF THE ORDER. Sec. 13. Section 14-5313, Arizona Revised Statutes, is amended to read: 14-5313. Proceedings subsequent to appointment; venue A. The court at the place where the ward resides has concurrent jurisdiction with the court that appointed the guardian or in which acceptance of a parental or spousal appointment was filed, over resignation, removal SUBSTITUTION, accounting and other proceedings relating to the guardianship including proceedings to limit the authority previously conferred on a guardian or to remove limitations previously imposed. B. If the court located at the place where the ward resides is not the court in which acceptance of appointment is filed, the court in which proceedings subsequent to appointment are commenced shall in all appropriate cases notify the other court, in this or another state, and after consultation with that court shall determine whether to retain jurisdiction or transfer the proceedings to the other court, whichever may be in the best interests of the ward. A copy of any order accepting a resignation, removing SUBSTITUTING a guardian or altering authority shall be sent to the court in which acceptance of appointment is filed. Sec. 14. Section 14-5315, Arizona Revised Statutes, is amended to read: 14-5315. Guardian reports; contents A. A guardian shall submit a written report to the court on each anniversary date of qualification as guardian, on resignation or removal SUBSTITUTION as guardian and on termination of the ward's disability. B. The guardian shall mail a copy of the report to: 1. The ward. Page 181 of 432 2. The ward's conservator. 3. The ward's spouse or the ward's parents if the ward is not married. 4. A court appointed attorney for the ward. 5. Any other interested person who has filed a demand for notice with the court. C. The report shall include the following: 1. The type, name and address of the home or facility where the ward lives and the name of the person in charge of the home. 2. The number of times the guardian has seen the ward in the last twelve months. 3. The date the guardian last saw the ward. 4. The name and address of the ward's physician or registered nurse practitioner. 5. The date the ward was last seen by a physician or a registered nurse practitioner. 6. A copy of the ward's physician's or registered nurse practitioner's report to the guardian or, if none exists, a summary of the physician's or the registered nurse practitioner's observations on the ward's physical and mental condition. 7. Major changes in the ward's physical or mental condition observed by the guardian in the last year. 8. The guardian's opinion as to whether the guardianship should be continued. 9. A summary of the services provided to the ward by a governmental agency and the name of the individual responsible for the ward's affairs with that agency. Sec. 15. Section 14-5401, Arizona Revised Statutes, is amended to read: 14-5401. Protective proceedings Upon ON petition and after notice and a hearing in accordance with the provisions of this article, the court may appoint a conservator or make another protective order for cause as follows: 1. Appointment of a conservator or other protective order may be made in relation to the estate and affairs of a minor if the court determines that a minor owns money or property that requires management or protection which THAT cannot otherwise be provided or has or may have affairs which THAT may be jeopardized or prevented by his minority or that funds are needed for his THE MINOR’S support and education and that protection is necessary or desirable to obtain or provide funds. Page 182 of 432 2. Appointment of a conservator or other protective order may be made in relation to the estate and affairs of a person if the court determines SPECIFICALLY FINDS ON THE RECORD both of the following: (a) The person is unable to manage the person's estate and affairs effectively for reasons such as mental illness, mental deficiency, mental disorder, physical illness or disability, chronic use of drugs, chronic intoxication, confinement, detention by a foreign power or disappearance. (b) The person has property which THAT will be wasted or dissipated unless proper management is provided, or that funds are needed for the support, care and welfare of the person or those entitled to be supported by the person and that protection is necessary or desirable to obtain or provide funds. Sec. 16. Section 14-5401.01, Arizona Revised Statutes, is amended to read: 14-5401.01. Temporary conservators; appointment; notice; hearings A. If a person ALLEGEDLY in need of protection has no conservator and an emergency exists or if an appointed conservator is not effectively performing the duties of a conservator and the estate or affairs of the protected person are found to require immediate action, the person ALLEGEDLY in need of protection, the protected person or any person interested in that person's estate or affairs may petition for a finding of a need for interim protection and for the appointment of a temporary conservator. No A finding and appointment may NOT be made without notice, pursuant to section 14-5405, except as provided in subsection B of this section. B. The court may enter a finding of a need for interim protection and may appoint a temporary conservator without notice to the proposed protected person ALLEGEDLY IN NEED OF PROTECTION or the proposed protected THAT person's attorney if all of the following conditions are met: 1. It clearly appears from specific facts shown by affidavit or by the verified petition that immediate and irreparable injury, loss or damage will result before the proposed protected person ALLEGEDLY IN NEED OF PROTECTION or that person's attorney can be heard in opposition. 2. The petitioner or the petitioner's attorney certifies to the court in writing any efforts that the petitioner or the attorney has made to give the notice or the reasons supporting the claim that notice should not be required. 3. The petitioner files with the court a request for a hearing on the petition for the appointment of a temporary conservator. 4. The petitioner or the petitioner's attorney certifies that notice of the petition, order and all filed reports and affidavits will be given to the proposed protected person ALLEGEDLY IN NEED OF PROTECTION by personal service within the time period the court directs but not more than seventy-two hours after entry of the order of appointment. Page 183 of 432 C. Unless the proposed protected person ALLEGEDLY IN NEED OF PROTECTION is represented by independent counsel, the court shall appoint an attorney to represent that person in the proceeding on receipt of the petition for temporary appointment. The attorney shall visit the proposed protected person ALLEGEDLY IN NEED OF PROTECTION as soon as practicable and shall be prepared to represent that person's interests at any hearing on the petition. D. Every order finding a need for interim protection and appointing a temporary conservator granted without notice expires as prescribed by the court but within a period of not more than thirty days unless within that time the court extends it for good cause shown for the same period or unless the attorney for the proposed protected person ALLEGEDLY IN NEED OF PROTECTION consents that it may be extended for a longer period. The court shall enter the reasons for the extension on the record. E. The court shall schedule a hearing on the petition for a finding of the need for interim protection and the appointment of a temporary conservator within the time specified in subsection D of this section. If the petitioner does not proceed with the petition the court, on the motion of any party or on its own motion, may dismiss the petition. F. If the court orders the appointment of a temporary conservator without notice, the proposed protected person ALLEGEDLY IN NEED OF PROTECTION may appear and move for its dissolution or modification on two days' notice to the petitioner and to the temporary conservator, or on such shorter notice as the court prescribes. The court shall proceed to hear and determine that motion as expeditiously as possible. IF THE PERSON ALLEGEDLY IN NEED OF PROTECTION OBJECTS TO THE PERSON WHO IS TEMPORARILY APPOINTED, THE COURT MAY APPOINT AN INDIVIDUAL NOMINATED BY THE PERSON ALLEGEDLY IN NEED OF PROTECTION IF THE PERSON ALLEGEDLY IN NEED OF PROTECTION IS AT LEAST FOURTEEN YEARS OF AGE AND HAS, IN THE OPINION OF THE COURT, SUFFICIENT MENTAL CAPACITY TO MAKE AN INTELLIGENT CHOICE. THE COURT SHALL APPOINT AN ALTERNATIVE CONSERVATOR IF AVAILABLE AND AFTER FINDING THAT THE APPOINTMENT IS IN THE BEST INTEREST OF THE PERSON ALLEGEDLY IN NEED OF PROTECTION. G. The hearing on a petition for the appointment of a temporary conservator shall be held in the same manner as a hearing on a preliminary injunction. The court may order the hearing on the petition for appointment of a permanent conservator to be advanced and consolidated with the hearing of ON the petition for temporary appointment. If the court does not order this consolidation any evidence received on a petition for temporary appointment that would be admissible at the hearing on a petition for a permanent appointment becomes part of the record and need not be repeated at a later hearing. This subsection does not limit the parties to any rights they may have to trial by jury. H. After notice and a hearing, if the court finds that a temporary conservator is necessary and the provisions of this section have been met, the court shall make an appointment of a temporary conservator for a specified period of time of not more than six months unless the court extends this time period for good cause shown. Page 184 of 432 Sec. 17. Section 14-5404, Arizona Revised Statutes, is amended to read: 14-5404. Original petition for appointment or protective order A. The person allegedly in need of protection, any person who is interested in that person's estate or affairs, including that person's parent, guardian or custodian, or any person who would be adversely affected by lack of effective management of that person's estate and affairs may petition for the appointment of a conservator or for any other appropriate protective order. B. The petition shall set forth, AT A MINIMUM AND to the extent known, ALL OF THE FOLLOWING: 1. The interest of the petitioner. 2. The name, age, residence and address of the person allegedly in need of protection. 3. The name, address and priority for appointment of the person whose appointment is sought. 4. The name and address of the guardian, if any, of the person allegedly in need of protection. 5. The name and address of the nearest relative of the person allegedly in need of protection known to the petitioner. 6. A general statement of the estate of the person allegedly in need of protection with an estimate of its value, including any compensation, insurance, pension or allowance to which the person is entitled. 7. The reason why appointment of a conservator or any other protective order is necessary. Sec. 18. Section 14-5405, Arizona Revised Statutes, is amended to read: 14-5405. Notice in conservatorship proceedings A. In a proceeding for the appointment or removal SUBSTITUTION of a conservator of a protected person or person allegedly in need of protection, other than the appointment of a temporary conservator or temporary suspension of a conservator, notice of the hearing shall be given to each of the following: 1. The protected person or the person allegedly in need of protection if that person is fourteen years of age or older. 2. The spouse, parents and adult children of the protected person or person allegedly in need of protection, or if no spouse, parents or adult children can be located, at least one adult relative of the protected person or the person allegedly in need of protection, if such a relative can be found. 3. Any person who is serving as guardian or conservator or who has the care and custody of the protected person or person allegedly in need of protection. 4. Any person who has filed a demand for notice. B. At least fourteen days before the hearing notice shall be served personally on the protected person or the person allegedly in need of protection and that person's spouse and parents if they can be found within the state. Notice to the spouse and parents, if they cannot be found within Page 185 of 432 the state, and to all other persons except the protected person or the person allegedly in need of protection shall be given in accordance with section 14-1401. Waiver of notice by the protected person or the person allegedly in need of protection is not effective unless the protected person or the person allegedly in need of protection attends the hearing. Sec. 19. Section 14-5407, Arizona Revised Statutes, is amended to read: 14-5407. Procedure concerning hearing and order on original petition A. On the filing of a petition for appointment of a conservator or any other protective order because of minority, the court shall set a hearing date on the matters alleged in the petition. If, at any time in the proceeding, the court determines that the interests of the minor are or may be inadequately represented, it shall appoint an attorney to represent the minor. If the minor is at least fourteen years of age the court shall consider the choice of the minor. B. On the filing of a petition for appointment of a conservator or any other protective order for reasons other than minority, the court shall set a hearing date. Unless the person to be protected has counsel of his THE PERSON'S own choice, the court shall appoint an attorney to represent him THAT PERSON. If the alleged disability is mental illness, mental deficiency, mental disorder, physical illness or disability, chronic use of drugs, or chronic intoxication, the court shall appoint an investigator to interview the person to be protected. On petition by an interested person or on the court's own motion, the court may direct that an appropriate medical or psychological evaluation of the person be conducted. The investigator and the person conducting the medical or psychological evaluation shall submit written reports to the court before the hearing date. C. In any case where the veterans administration is or may be an interested party, a certificate of an authorized official of the veterans administration that the person allegedly in need of protection has been found incapable of handling the benefits payable, on examination in accordance with the laws and regulations governing the veterans administration, is prima facie evidence of the necessity for appointment of a conservator. D. The person allegedly in need of protection is entitled to be present at the hearing, to be represented by counsel, to present evidence and to cross-examine witnesses, including any court appointed examiner and investigator. The issue may be determined at a closed hearing if the person allegedly in need of protection or that person's counsel so requests. E. After the hearing, upon a finding AND AFTER MAKING SPECIFIC FINDINGS ON THE RECORD that a basis for the appointment of a conservator or any other protective order has been established, the court shall make an appointment or other appropriate protective order. Sec. 20. Section 14-5410, Arizona Revised Statutes, is amended to read: 14-5410. Who may be appointed conservator; priorities Page 186 of 432 A. The court may appoint an individual or a corporation, with general power to serve as trustee, as conservator of the estate of a protected person subject to the requirements of section 14-5106. The following are entitled to consideration for appointment in the order listed: 1. A conservator, guardian of property or other like fiduciary appointed or recognized by the appropriate court of any other jurisdiction in which the protected person resides. 2. An individual or corporation nominated by the protected person if the protected person is at least fourteen years of age and has, in the opinion of the court, sufficient mental capacity to make an intelligent choice. 3. The person nominated TO SERVE AS CONSERVATOR in the protected person's most recent durable power of attorney. 4. The spouse of the protected person. 5. An adult child of the protected person. 6. A parent of the protected person, or a person nominated by the will of a deceased parent. 7. Any relative of the protected person with whom the protected person has resided for more than six months before the filing of the petition. 8. The nominee of a person who is caring for or paying benefits to the protected person. 9. If the protected person is a veteran, the spouse of a veteran or the minor child of a veteran, the department of veterans' services. 10. A fiduciary, WHO IS LICENSED PURSUANT TO SECTION 14-5651 guardian, or conservator, OTHER THAN A PUBLIC FIDUCIARY. 11. A PUBLIC FIDUCIARY WHO IS LICENSED PURSUANT TO SECTION 14-5651. B. A person listed in subsection A, paragraph 4, 5, 6, 7 or 8 of this section may nominate in writing a person to serve in that person's place. With respect to persons having equal priority, the court shall select the one 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. FOR THE PURPOSES OF THIS SUBSECTION, "GOOD CAUSE" INCLUDES A DETERMINATION THAT: 1. THE PROTECTED PERSON'S DURABLE POWER OF ATTORNEY IS INVALID. 2. HONORING THE PROTECTED PERSON'S DURABLE POWER OF ATTORNEY WOULD NOT BE IN THE PHYSICAL, EMOTIONAL OR FINANCIAL BEST INTEREST OF THE PROTECTED PERSON. Page 187 of 432 3. THE ESTIMATED COST OF THE FIDUCIARY AND ASSOCIATED PROFESSIONAL FEES WOULD ADVERSELY AFFECT THE ABILITY OF THE PERSON'S ESTATE TO PROVIDE FOR THE PROTECTED PERSON'S REASONABLE AND NECESSARY LIVING EXPENSES. C. ON THE REQUEST OF A PERSON WHO WAS PASSED OVER BY THE COURT PURSUANT TO SUBSECTION B OF THIS SECTION, THE COURT SHALL MAKE A SPECIFIC FINDING REGARDING THE COURT'S DETERMINATION OF GOOD CAUSE AND WHY THE PERSON WAS NOT APPOINTED. THE REQUEST MUST BE MADE WITHIN TEN DAYS AFTER THE ENTRY OF THE ORDER. Sec. 21. Repeal Section 14-5415, Arizona Revised Statutes, is repealed. Sec. 22. Title 14, chapter 5, article 4, Arizona Revised Statutes, is amended by adding a new section 14-5415, to read: 14-5415. RESIGNATION OR SUBSTITUTION OF CONSERVATOR A. ON PETITION OF THE PROTECTED PERSON OR ANY PERSON INTERESTED IN THE PROTECTED PERSON'S WELFARE, OR ON THE COURT'S OWN INITIATIVE, THE COURT SHALL SUBSTITUTE A CONSERVATOR AND APPOINT A SUCCESSOR IF THE SUBSTITUTION IS IN THE BEST INTEREST OF THE PROTECTED PERSON. THE COURT DOES NOT NEED TO FIND THAT THE CONSERVATOR ACTED INAPPROPRIATELY TO FIND THAT THE SUBSTITUTION IS IN THE PROTECTED PERSON'S BEST INTEREST. THE CONSERVATOR AND THE CONSERVATOR'S ATTORNEY MAY BE COMPENSATED FROM THE PROTECTED PERSON'S ESTATE FOR DEFENDING AGAINST A PETITION FOR SUBSTITUTION ONLY FOR THE AMOUNT ORDERED BY THE COURT AND ON PETITION BY THE CONSERVATOR OR THE CONSERVATOR'S ATTORNEY. WHEN SUBSTITUTING A CONSERVATOR AND APPOINTING A SUCCESSOR, THE COURT MAY APPOINT AN INDIVIDUAL NOMINATED BY THE PROTECTED PERSON IF THE PERSON IS AT LEAST FOURTEEN YEARS OF AGE AND HAS, IN THE OPINION OF THE COURT, SUFFICIENT MENTAL CAPACITY TO MAKE AN INTELLIGENT CHOICE. ON PETITION OF THE CONSERVATOR, THE COURT MAY ACCEPT A RESIGNATION AND MAKE ANY OTHER ORDER THAT MAY BE APPROPRIATE. B. THE PROTECTED PERSON MAY PETITION THE COURT FOR AN ORDER THAT THE PROTECTED PERSON IS NO LONGER IN NEED OF PROTECTION OR PETITION FOR SUBSTITUTION OF THE CONSERVATOR AT ANY TIME. A REQUEST FOR THIS ORDER MAY BE MADE BY INFORMAL LETTER TO THE COURT OR JUDGE. A PERSON WHO KNOWINGLY INTERFERES WITH THE TRANSMISSION OF THIS REQUEST MAY BE FOUND IN CONTEMPT OF COURT. Page 188 of 432 C. AN INTERESTED PERSON, OTHER THAN THE CONSERVATOR OR PROTECTED PERSON, SHALL NOT FILE A PETITION FOR ADJUDICATION THAT THE PROTECTED PERSON IS NO LONGER IN NEED OF PROTECTION EARLIER THAN ONE YEAR AFTER THE ENTRY OF A PROTECTIVE ORDER UNLESS THE COURT PERMITS THE PERSON TO FILE THE PETITION ON THE BASIS OF AFFIDAVITS THAT THERE IS REASON TO BELIEVE THAT THE PROTECTED PERSON IS NO LONGER IN NEED OF PROTECTION. D. AN INTERESTED PERSON, OTHER THAN THE CONSERVATOR OR PROTECTED PERSON, SHALL NOT FILE A PETITION TO SUBSTITUTE A CONSERVATOR EARLIER THAN ONE YEAR AFTER THE ENTRY OF A PROTECTIVE ORDER, UNLESS THE COURT PERMITS THE PERSON TO FILE THE PETITION ON THE BASIS OF AFFIDAVITS THAT THERE IS REASON TO BELIEVE THAT THE CURRENT CONSERVATOR WILL ENDANGER THE PROTECTED PERSON'S ESTATE IF THE CONSERVATOR IS NOT SUBSTITUTED. E. BEFORE IT ORDERS THAT NEED FOR PROTECTION NO LONGER EXISTS, SUBSTITUTING A CONSERVATOR OR ACCEPTING THE RESIGNATION OF A CONSERVATOR, THE COURT, FOLLOWING THE SAME PROCEDURES TO SAFEGUARD THE RIGHTS OF THE PROTECTED PERSON THAT APPLY TO A PETITION FOR APPOINTMENT OF A CONSERVATOR, MAY REQUIRE APPROPRIATE ACCOUNTS AND ENTER APPROPRIATE ORDERS TO PRESERVE AND PROTECT THE ASSETS OF THE ESTATE, TO REQUIRE REIMBURSEMENT OR PAYMENT AS NEEDED AND TO TRANSFER ASSETS OR TITLE THERETO TO APPROPRIATE SUCCESSORS. Sec. 23. Section 14-5418, Arizona Revised Statutes, is amended to read: 14-5418. Inventory and records A. Within ninety days after appointment, a conservator shall prepare and file with the court an inventory of the estate owned by assets of the protected person on the date of the conservator's appointment, listing it with reasonable detail and indicating the fair market value of each asset as of the date of appointment of each item listed. The conservator shall attach to the inventory a copy of the protected person's CONSUMER credit report from a credit reporting agency that is dated within ninety days before the filing of the inventory. B. The conservator shall provide a copy of the inventory to the protected person if the protected person can be located, has attained the age of fourteen years of age, and has sufficient mental capacity to understand these matters, and to any parent or guardian with whom the protected person resides. The conservator shall keep suitable records of the conservator's administration and exhibit the records on request of any interested person. c. Unless otherwise ordered by the court, a person who is entitled to notice of the conservator's annual account pursuant to section 14-5419, subsection C may request in writing that the conservator do one of the following not more than once every thirty days: 1. Allow the person to view the protected person's financial records, the conservator's billing statements, the billing statements of the conservator's attorney or other records related to the protected person under the conservator's control. Page 189 of 432 2. Provide the requesting person with copies of these documents. Unless otherwise ordered by the court, the conservator shall allow the person to view or provide copies of the requested documents to the person as soon as practicable but no later than thirty days after receiving the request. The requesting party must pay reasonable copying costs. 3. Provide a report of receipts and dispersements of the conservatorship. Sec. 24. Section 14-5419, Arizona Revised Statutes, is amended to read: 14-5419. Accounts; definition A. Except as provided pursuant to subsection F of this section, every conservator must account to the court for the administration of the estate not less than annually on the anniversary date of qualifying as conservator and also on resignation or removal SUBSTITUTION, and on termination of the protected person's minority or disability, except that for good cause shown on the application of an interested person, the court may relieve the conservator of filing annual or other accounts by an order entered in the minutes. B. The court may take any appropriate action on filing of annual or other accounts. In connection with any account, the court may require a conservator to submit to a physical check of the estate in the conservator's control, to be made in any manner the court may specify. C. An adjudication allowing an intermediate or final account can be made only on petition, notice and a hearing. Notice must be given to: 1. The protected person. 2. A guardian of the protected person if one has been appointed, unless the same person is serving as both guardian and conservator. 3. If no guardian has been appointed or the same person is serving as both guardian and conservator, a spouse or, if the spouse is the conservator, there is no spouse or the spouse is incapacitated, a parent or an adult child who is not serving as a conservator. 4. A representative appointed for the protected person, if the court determines in accordance with section 14-1408 that representation of the interest of the protected person would otherwise be inadequate. D. An order, made on notice and a hearing, allowing an intermediate account of a conservator, adjudicates as to the conservator's liabilities concerning the matters considered in connection therewith. An order, made on notice and a hearing, allowing a final account adjudicates as to all previously unsettled liabilities of the conservator to the protected person or the protected person's successors relating to the conservatorship. E. In any case in which the estate consists, in whole or in part, of benefits paid by the veterans administration to the conservator or the conservator's predecessor for the benefit of the protected person, the veterans administration office that has jurisdiction over the area is entitled to a copy Page 190 of 432 of any account filed under chapter 5, article 4 of this title ARTICLE. Each year in which an account is not filed with the court, the conservator, if requested, shall submit an account to the appropriate veterans administration office. If an account is not submitted as requested, or if it is found unsatisfactory by the veterans administration, the court on receipt of notice of the deficiency shall require the conservator to immediately file an account with the court promptly. F. Unless prohibited by order of the court, the conservator may file with the court, in lieu of a final account, a verified statement stating that: 1. The protected person has died. The conservator shall attach a certified copy of the protected person's death certificate to the statement. 2. The protected person's successors have all waived in writing their right to have the conservator submit to the court a final account of the conservator's administration of the protected person's estate. The conservator shall attach the originals of the written waivers to the statement. 3. The conservator has delivered a copy of a closing statement to the protected person's successors. The conservator shall attach a copy of the closing statement to the statement. G. The closing statement that is to be delivered to the protected person's successors shall be a verified statement stating the following: 1. The protected person has died and the date of the person's death. 2. The persons receiving the closing statement have a right to have the conservator submit to the court a final account of the conservator's administration of the protected person's estate. 3. If the person wishes to have the final accounting reviewed by the court, the person should not sign a waiver that waives this right. 4. If all persons receiving the closing statement choose to waive the right to have the conservator submit to the court a final account, the final account will not be reviewed by the court. 5. A list of the property owned by the protected person, as of the date of the protected person's death, is attached to the closing statement and that the list states the fair market value of the property as of the date of the protected person's death. 6. The conservator, by the closing statement, shall inform the protected person's successors that if they waive court review of the conservator's final account, the conservatorship will be terminated, the conservator will be discharged from all liabilities relating to the conservatorship, the bond or other security posted by the conservator will be exonerated and any restrictions previously imposed on the assets of the conservatorship will be lifted. Page 191 of 432 H. The conservator shall file an affidavit with the court that states that the closing statement was sent or delivered to the protected person's successors on a date before the date that the protected person's successors signed the written waiver. I. Unless proceedings are pending against the conservator, on the filing of the statement described in subsection F of this section and the affidavit described in subsection H of this section, the court shall enter an order terminating the conservatorship, discharging the conservator from all liabilities relating to the conservatorship, exonerating and releasing any bond or other security posted by the conservator and releasing any restrictions previously imposed on the assets of the conservatorship. J. For the purposes of this section, "protected person's successors" means: 1. The personal representative of the protected person's estate if the personal representative and the conservator are not the same person. 2. If the conservator and the personal representative of the protected person's estate are the same person and if the protected person died intestate, the protected person's heirs. 3. If the conservator and the personal representative of the protected person's estate are the same person and if the protected person died testate, the devisees under the protected person's will that has been admitted to probate. Sec. 25. Section 14-5651, Arizona Revised Statutes, is amended to read: 14-5651. Fiduciaries; licensure; qualifications; conduct; removal; exemption; definitions A. Except as provided by subsection G of this section, the superior court shall not appoint a fiduciary unless that person is licensed by the supreme court. The supreme court shall administer the licensure program and shall adopt rules and establish and collect fees necessary for its implementation. The supreme court shall deposit, pursuant to sections 35-146 and 35-147, the monies collected pursuant to this subsection in the confidential intermediary and fiduciary fund established by section 8-135. At a minimum the rules adopted pursuant to this subsection shall include the following: 1. A code of conduct. 2. A requirement that fiduciaries post a cash deposit or surety bond with the supreme court. 3. A REQUIREMENT THAT ON APPOINTMENT A FIDUCIARY WHO IS SERVING AS A GUARDIAN OR CONSERVATOR MUST PROVIDE WRITTEN INFORMATION TO THE WARD OR PROTECTED PERSON AND ALL PERSONS ENTITLED TO NOTICE PURSUANT TO SECTION 14-5309 OR 14-5405 THAT THE FIDUCIARY IS LICENSED BY THE SUPREME COURT AND SUBJECT TO REGULATION BY THE SUPREME COURT. THE LANGUAGE OF THE WRITTEN INFORMATION PROVIDED BY THE FIDUCIARY SHALL BE PRESCRIBED BY THE SUPREME COURT AND SHALL INCLUDE Page 192 of 432 REFERENCE TO THE CODE OF CONDUCT THAT ALL LICENSED FIDUCIARIES MUST FOLLOW. 3. 4. Minimum qualifications. 4. 5. Biennial renewal of licensure. B. As a condition of appointment, the supreme court shall require each applicant for the position of fiduciary to submit a full set of fingerprints to the supreme court for the purpose of obtaining a state and federal criminal records check to determine the suitability of the applicant pursuant to section 41-1750 and Public Law 92-544. The department of public safety may exchange this fingerprint data with the federal bureau of investigation. C. An applicant for licensure must: 1. Be at least twenty-one years of age. 2. Be a citizen of this country. 3. Not have been convicted of a felony. 4. Attest that the applicant has not been found civilly liable in an action that involved fraud, misrepresentation, material omission, misappropriation, theft or conversion. 5. Attend an initial session and thereafter biennial training sessions prescribed by the supreme court on the duties of a fiduciary. 6. Consent in the application form to the jurisdiction of the courts of this state for all actions arising under this article or article 6 of this chapter and appoint the fiduciary program coordinator as the lawful agent for the purpose of accepting service of process in any action, suit or proceeding that relates to the duties of a fiduciary. The program coordinator shall transmit by registered mail to the person's last known address the lawful service of process accepted by the program coordinator. Notwithstanding the provisions of this paragraph, service of process on a public fiduciary or the department of veterans' services shall be made pursuant to the Arizona rules of civil procedure. D. The superior court shall, and any person may, notify the supreme court if it appears that a fiduciary has violated a rule adopted under this section. The supreme court shall then conduct an investigation and hearing pursuant to its rules. If the supreme court determines that the fiduciary committed the violation it may revoke the fiduciary's license or impose other sanctions, including civil penalties, and shall notify the superior court in each county of this action. The supreme court may then also require the fiduciary to forfeit a cash deposit or surety bond to the extent necessary to compensate the court for the expenses it incurred to conduct the investigation and hearing. Page 193 of 432 E. A person who in good faith provides information or testimony regarding a fiduciary's misconduct or lack of professionalism is not subject to civil liability. F. Persons appointed by the chief justice to serve in an advisory capacity to the fiduciary program, staff of the fiduciary program, hearing officers and employees of the administrative office of the courts who participate in the fiduciary program are immune from civil liability for conduct in good faith that relates to their official duties. G. The requirements of this section do not apply to a financial institution. This exemption does not prevent the superior court from appointing a financial institution as a fiduciary. The supreme court may exempt a fiduciary from the requirements of this section for good cause. H. This section does not grant any fiduciary or any applicant for a license as a fiduciary the right to a direct appeal to the supreme court. I. The supreme court may receive and expend monies from the confidential intermediary and fiduciary fund established by section 8-135 for the purposes of performing the duties related to fiduciaries pursuant to this section. J. This section applies to any supreme court licensed fiduciary who is acting as a guardian, conservator, personal representative, trustee or agent under a power of attorney, whether or not that person is acting pursuant to court appointment. K. For the purposes of this section: 1. "Fiduciary" means: (a) A person who for a fee serves as a court appointed guardian or conservator for one or more persons who are unrelated to the fiduciary. (b) A person who for a fee serves as a court appointed personal representative and who is not related to the decedent, is not nominated in a will or by a power conferred in a will and is not a devisee in the will. (c) A public fiduciary appointed pursuant to section 14-5601. (d) The department of veterans' services. 2. "Financial institution" means a bank that is insured by the federal deposit insurance corporation and chartered under the laws of the United States or any state, a trust company that is owned by a bank holding company that is regulated by the federal reserve board or a trust company that is chartered under the laws of the United States or this state. Sec. 26. Section 14-5652, Arizona Revised Statutes, is amended to read: 14-5652. Attorneys; fiduciary duties Page 194 of 432 A. EXCEPT AS PRESCRIBED PURSUANT TO SECTION 14-1104 AND absent an express agreement to the contrary, the performance by an attorney of legal services for a fiduciary, settlor or testator does not by itself establish a duty in contract or tort or otherwise to any third party. For the purposes of this subsection, third party does not apply to the personal representative, settlor or testator. B. An attorney who acts as a personal representative or trustee shall disclose to all adult persons who have an interest in the estate or trust the names of any person who has an interest in that estate or trust to whom the attorney is currently rendering or has in the past rendered legal services. The attorney must make this disclosure in writing within a reasonable time after learning that a client or former client has an interest in the estate or trust. The representation of an interested person by that attorney is not grounds for removing the attorney as the personal representative or trustee unless the attorney is unable to perform the fiduciary duties as personal representative or trustee without violating the attorney's ethical responsibilities to the client or former client. Sec. 27. Section 14-10706, Arizona Revised Statutes, is amended to read: 14-10706. Removal of trustee A. The settlor, a cotrustee or a beneficiary may request the court to remove a trustee or a trustee may be removed by the court on its own initiative. B. The court may remove a trustee if: 1. The trustee has committed a material breach of trust. 2. Lack of cooperation among cotrustees substantially impairs the administration of the trust. 3. Because of unfitness, unwillingness or persistent failure of the trustee to administer the trust for the benefit of the beneficiaries, the court determines that removal of the trustee best serves the interests of the beneficiaries. 4. There has been a substantial change of circumstances or removal is requested by all of the qualified beneficiaries, the court finds that removal of the trustee best serves the interests of all of the beneficiaries and is not inconsistent with a material purpose of the trust and a suitable cotrustee or successor trustee is available. C. Pending a final decision on a request to remove a trustee, or in lieu of or in addition to removing a trustee, the court may order appropriate relief under section 14-11001, subsection B as may be necessary to protect the trust property or the interests of the beneficiaries. D. ON PETITION OF A BENEFICIARY WHO IS ALSO A SETTLOR OF A TRUST, INCLUDING A BENEFICIARY FOR WHOM A GUARDIAN OR CONSERVATOR HAS BEEN APPOINTED, THE COURT SHALL SUBSTITUTE A TRUSTEE AND APPOINT A Page 195 of 432 SUCCESSOR IF THE SUBSTITUTION IS IN THE BEST INTEREST OF THE BENEFICIARY. THE TRUSTEE AND THE TRUSTEE'S ATTORNEY MAY BE COMPENSATED FROM THE TRUST FOR DEFENDING AGAINST A PETITION FOR SUBSTITUTION ONLY FOR THE AMOUNT ORDERED BY THE COURT AND ON PETITION BY THE TRUSTEE OR THE TRUSTEE'S ATTORNEY. WHEN SUBSTITUTING A TRUSTEE AND APPOINTING A SUCCESSOR, THE COURT MAY APPOINT AN INDIVIDUAL NOMINATED BY THE BENEFICIARY IF THE BENEFICIARY HAS, IN THE OPINION OF THE COURT, SUFFICIENT MENTAL CAPACITY TO MAKE AN INTELLIGENT CHOICE. Sec. 28. Effective date This act is effective from and after December 31, 2011. Page 196 of 432 Appendix F Minimum Best Practices A. ADULT GUARDIANSHIP CASES i. Annual Guardianship Reports 1. Order guardian to file annual reports 2. Direct guardian to file the annual report of a guardian at the appointment hearing 3. Set filing deadlines in appointment and in all subsequent guardian report review hearing orders a. Judge should warn guardian of possible sanctions for noncompliance with court orders (i) Monetary fines, including costs of an alternative fiduciary, assessed against guardian personally (ii) Suspension of Letters (iii) Removal (iv) Fiduciary arrest warrant 4. Provide Annual Report of Guardian forms and filing instructions a. In court at the appointment hearing b. At the Clerk’s office, law library, self-service forms center c. On the court’s website d. At the local bar association office B. ADULT CONSERVATORSHIP CASES ii. Bonds and Restricted Accounts 1. Order conservator to post bond, record Letters and give filing deadline 2. Order bond posted prior to Letters of Conservator being issued 3. If no bond, or in a partially bonded estate, order all non- bonded assets be restricted and give filing deadline of Proof of Restricted Account 4. Confirm that appropriate bond has been posted by appropriate tickler such as non-appearance hearing Page 197 of 432 ii. iii. 5. Order appointing conservator should always contain the following warning language: “This Order does not authorize any transaction. Letters of Conservator must be issued.” 6. Confirm that conservator accounts are established with appropriate restrictions where applicable a. Order conservator to file a Proof of Restricted Account in an appropriate format and give filing deadline b. Consider periodic requirement of filing an updated Proof of Restricted Account to confirm balance of funds Inventory and Appraisement 1. Order conservator to file Inventory and Appraisement within 90 days of the appointment hearing 2. Confirm Inventory is filed by implementing automation of case monitoring event Annual Account of Conservator 1. Order conservator to file the annual accounting at the initial appointment hearing 2. Set filing deadlines in appointment hearing by implementing automation of case monitoring event 3. Warn conservator of possible sanctions for non-compliance with court orders a. Fines - Costs of referral to alternate fiduciary assessed against conservator personally b. Suspension of Letters c. Removal d. Fiduciary Arrest Warrant 4. Provide Annual Account of Conservator forms and filing instructions a. In court at the appointment hearing b. At the clerk’s office, law library, self-service forms center c. On the court’s website d. At the local bar association office Page 198 of 432 Appendix G Order to Guardian Page 199 of 432 Page 200 of 432 Page 201 of 432 Page 202 of 432 Appendix H Order to Conservator Page 203 of 432 Page 204 of 432 Page 205 of 432 Page 206 of 432 Appendix I Order to Guardian and Conservator Page 207 of 432 Page 208 of 432 Page 209 of 432 Page 210 of 432 Page 211 of 432 Appendix J Proof of Restricted Account from Financial Institution Page 212 of 432 Page 213 of 432 Appendix K Form 5 (Contained in Rule 38) Page 214 of 432 Page 215 of 432 Page 216 of 432 Page 217 of 432 Page 218 of 432 Appendix L Forms 6-10 (Contained in Rule 38) Page 219 of 432 Page 220 of 432 Page 221 of 432 Page 222 of 432 Page 223 of 432 Page 224 of 432 Page 225 of 432 Page 226 of 432 Page 227 of 432 Page 228 of 432 Page 229 of 432 Page 230 of 432 Page 231 of 432 Page 232 of 432 Page 233 of 432 Page 234 of 432 Page 235 of 432 Page 236 of 432 Page 237 of 432 Page 238 of 432 Page 239 of 432 Page 240 of 432 Page 241 of 432 Page 242 of 432 Page 243 of 432 Page 244 of 432 Page 245 of 432 Page 246 of 432 Page 247 of 432 Page 248 of 432 Page 249 of 432 Page 250 of 432 Page 251 of 432 Page 252 of 432 Page 253 of 432 Page 254 of 432 Page 255 of 432 Page 256 of 432 Page 257 of 432 Page 258 of 432 Page 259 of 432 Page 260 of 432 Page 261 of 432 Page 262 of 432 Page 263 of 432 Page 264 of 432 Page 265 of 432 Page 266 of 432 Page 267 of 432 Page 268 of 432 Page 269 of 432 Page 270 of 432 Page 271 of 432 Page 272 of 432 Page 273 of 432 Page 274 of 432 Page 275 of 432 Page 276 of 432 Page 277 of 432 Page 278 of 432 Appendix M Statewide Fee Guidelines STATEWIDE FEE GUIDELINES FOR ASSESSING THE REASONABLENESS OF FIDUCIARY, GUARDIAN AD LITEM, AND ATTORNEY COMPENSATION IN TITLE 14 PROCEEDINGS INTRODUCTION: THESE GUIDELINES ARE INTENDED TO ASSIST THE COURT, FIDUCIARIES, GUARDIANS AD LITEM, ATTORNEYS, PARTIES, AND INTERESTED PERSONS IN EVALUATING WHETHER COMPENSATION IS REASONABLE, SINCE PROFESSIONAL SERVICES MUST BE TAILORED TO THE SPECIFIC CIRCUMSTANCES OF EACH ENGAGEMENT, AND A ONE-SIZE-FITS-ALL REGULATORY APPROACH TO PROFESSIONAL SERVICES AND COMPENSATION IS NOT PRACTICAL AND NOT IN THE BEST INTEREST OF EACH UNIQUE WARD, PROTECTED PERSON, ESTATE, AND TRUST. ALTHOUGH SUCH REGULATORY APPROACHES HAVE THE ATTRACTION OF APPARENT SIMPLICITY, THE RESULT CAN BE INCREASED ADMINISTRATIVE COSTS, DIMINISHED QUALITY OF PROFESSIONAL SERVICES, OR UNDERSERVED POPULATIONS, SUCH THAT REASONABLE COMPENSATION IS BEST DETERMINED ON A CASE-BY-CASE BASIS, WHILE APPLYING CONSISTENT COMPENSATION GUIDELINES. SINCE EVERY CASE IS DIFFERENT, HOWEVER, AND BECAUSE EVERY FIDUCIARY, GUARDIAN AD LITEM, AND ATTORNEY HAS UNIQUE QUALIFICATIONS, THESE FEE GUIDELINES SET FORTH COMPULSORY BILLING STANDARDS, POINTS OF REFERENCE, AND GENERAL COMPENSATION FACTORS, BUT NOT PREDETERMINED TIMES TO PERFORM SPECIFIC TASKS, PREDETERMINED RATE SCHEDULES, OR FEES AS A PERCENT OF AN ESTATE. THEREFORE, FOLLOWING COMPLIANCE WITH COMPULSORY BILLING STANDARDS, THE COURT SHALL WEIGH THE TOTALITY OF THE CIRCUMSTANCES AND, IN ITS DISCRETION, ASSIGN MORE OR LESS WEIGHT TO ANY GIVEN POINTS OF REFERENCE OR COMPENSATION FACTORS AS IT DEEMS JUST AND REASONABLE. Page 279 of 432 SCOPE: THESE GUIDELINES ONLY APPLY TO THE COMPENSATION OF COURTAPPOINTED FIDUCIARIES, SPECIFICALLY GUARDIANS, CONSERVATORS, AND PERSONAL REPRESENTATIVES, LICENSED AND UNLICENSED, AS WELL AS GUARDIANS AD LITEM AND ATTORNEYS WHO ARE PAID BY A WARD, PROTECTED PERSON, ESTATE, OR TRUST (COLLECTIVELY REFERRED TO IN THE GUIDELINES AS AN “ESTATE”), BUT SHALL NOT APPLY TO COMPENSATION PAID BY A TRUST OR DECEDENT’S ESTATE, IF COMPENSATION IS SPECIFIED OR SET FORTH IN THE RELEVANT TRUST OR TESTAMENTARY INSTRUMENT. THESE FEE GUIDELINES DO NOT APPLY WHEN THE FEES ARE NOT PAID BY THE ESTATE, SUCH AS COURTAPPOINTED COUNSEL WHO ARE PAID BY THE COURT. GUIDELINES: 1. REASONABLE COMPENSATION. FIDUCIARIES, GUARDIANS AD LITEM, AND ATTORNEYS (COLLECTIVELY REFERRED TO IN THE GUIDELINES AS A “PROFESSIONAL”) ARE ENTITLED TO REASONABLE COMPENSATION FOR THE SERVICES THEY RENDER IN FURTHERANCE OF THE BEST INTEREST OF THE ESTATE, WHICH RESULTS IN COMPENSATION THAT IS FAIR, PROPER, JUST, MODERATE, SUITABLE UNDER THE CIRCUMSTANCES, FIT, APPROPRIATE TO THE END IN VIEW, AND TIMELY PAID, CONSISTENT WITH THE FOLLOWING GUIDELINES. THE RIGHT TO RECEIVE COMPENSATION MAY BE LIMITED BY APPLICABLE STATUTES. 2. COMPULSORY BILLING STANDARDS. UNLESS OTHERWISE ORDERED BY THE COURT, COMPENSATION AND REIMBURSEMENT SHALL MEET THE FOLLOWING STANDARDS: A. ALL FEE PETITIONS SHALL COMPLY WITH RULE 33 OF THE ARIZONA RULES OF PROBATE PROCEDURE. B. ALL HOURLY BILLING SHALL BE IN AN INCREMENT TO THE NEAREST 1/10 OF AN HOUR, WITH NO MINIMUM BILLING UNIT IN EXCESS OF 1/10 OF AN HOUR. NO “VALUE BILLING” FOR SERVICES RENDERED IS PERMITTED, RATHER THAN THE ACTUAL TIME EXPENDED. C. “BLOCK BILLING” IS NOT PERMITTED; BLOCK BILLING OCCURS WHEN A TIMEKEEPER PROVIDES ONLY A TOTAL AMOUNT OF TIME SPENT WORKING ON MULTIPLE TASKS, RATHER THAN AN ITEMIZATION OF THE TIME EXPENDED ON A SPECIFIC TASK. D. NECESSARY TRAVEL TIME AND WAITING TIME MAY BE BILLED AT 100% OF THE NORMAL HOURLY RATE, EXCEPT FOR TIME SPENT ON OTHER BILLABLE ACTIVITY, AND IN-STATE MILEAGE IS NOT REIMBURSED; TRAVEL TIME AND WAITING TIME ARE NOT NECESSARY WHEN THE Page 280 of 432 SERVICE CAN BE MORE EFFICIENTLY RENDERED BY CORRESPONDENCE OR ELECTRONIC COMMUNICATION, E.G. TELEPHONIC COURT HEARINGS. E. BILLABLE TIME THAT BENEFITS MULTIPLE CLIENTS, INCLUDING TRAVEL AND WAITING TIME, SHALL BE APPROPRIATELY APPORTIONED BETWEEN EACH CLIENT. F. BILLABLE TIME DOES NOT INCLUDE TIME SPENT ON BILLING OR ACCOUNTS RECEIVABLE ACTIVITIES, INCLUDING TIME SPENT PREPARING ITEMIZED STATEMENTS OF WORK PERFORMED, COPYING, OR DISTRIBUTING STATEMENTS; HOWEVER, TIME SPENT DRAFTING THE ADDITIONAL DOCUMENTS THAT ARE REQUIRED BY COURT ORDER, RULE, OR STATUTE, INCLUDING ANY RELATED HEARING, IS BILLABLE TIME. THE COURT SHALL DETERMINE THE REASONABLE COMPENSATION, IF ANY, IN ITS SOLE DISCRETION, CONCERNING ANY CONTESTED LITIGATION OVER FEES OR COSTS. G. BILLABLE TIME DOES NOT INCLUDE INTERNAL BUSINESS ACTIVITIES OF THE PROFESSIONAL, INCLUDING CLERICAL OR SECRETARIAL SUPPORT TO THE PROFESSIONAL. H. THE HOURLY RATE CHARGED FOR ANY GIVEN TASK SHALL BE AT THE AUTHORIZED RATE, COMMENSURATE WITH THE TASK PERFORMED, REGARDLESS OF WHO ACTUALLY PERFORMED THE WORK, BUT CLERICAL AND SECRETARIAL ACTIVITIES ARE NOT SEPARATELY BILLABLE FROM THE PROFESSIONAL. EXAMPLE: AN ATTORNEY CAN ONLY BILL AN ATTORNEY RATE WHEN PERFORMING SERVICES THAT REQUIRE AN ATTORNEY, BUT A PARALEGAL RATE WHEN PERFORMING PARALEGAL SERVICES, A FIDUCIARY RATE WHEN PERFORMING FIDUCIARY SERVICES, NO CHARGE WHEN PERFORMING SECRETARIAL OR CLERICAL SERVICES, ETC. EXAMPLE: A FIDUCIARY CAN ONLY BILL A FIDUCIARY RATE WHEN PERFORMING SERVICES THAT REQUIRE THE SKILL LEVEL OF THE FIDUCIARY, BUT A COMPANION RATE WHEN PERFORMING COMPANION SERVICES, A BOOKKEEPER RATE WHEN PERFORMING BOOKKEEPING AND BILL-PAYING SERVICES FOR A CLIENT, NO CHARGE WHEN PERFORMING SECRETARIAL OR CLERICAL SERVICES, ETC. I. REASONABLE COSTS THAT ARE INCURRED IN FURTHERANCE OF THE BEST INTEREST OF THE ESTATE ARE REIMBURSABLE AT ACTUAL COST, WITHOUT “MARK-UP”. EXAMPLES OF REIMBURSABLE COSTS INCLUDE, BUT ARE NOT LIMITED TO: GOODS OR SERVICES OBTAINED FOR OR CONSUMED BY THE ESTATE; POSTAGE AND SHIPPING FEES; DEPOSITION Page 281 of 432 AND TRANSCRIPT COSTS; FEES CHARGED BY A PROCESS SERVER; PUBLICATION FEES; EXPERT WITNESS FEES; MESSENGER COSTS; CASESPECIFIC BONDS; AND ELECTRONIC DATABASE FEES CHARGED BY AN OUTSIDE VENDOR (E.G., WESTLAW, LEXISNEXIS, PACER, ETC.) EXCEPT FOR CHARGES TO RESEARCH ARIZONA STATUTES, CASE LAW, AND REGULATIONS. REIMBURSABLE COSTS DO NOT INCLUDE ANY COST NOT SPECIFICALLY OR DIRECTLY ASSOCIATED WITH THE DELIVERY OF GOODS OR SERVICES TO AN IDENTIFIED ESTATE, I.E. OVERHEAD. J. TIME AND EXPENSES FOR ANY MISFEASANCE OR MALFEASANCE ARE NOT COMPENSABLE. K. TIME AND EXPENSES TO CORRECT OR MITIGATE ERRORS CAUSED BY THE PROFESSIONAL, OR THEIR STAFF, ARE NOT BILLABLE TO THE ESTATE. L. TIME OR EXPENSES TO RESPOND OR DEFEND AGAINST A REGULATORY COMPLAINT AGAINST THE PROFESSIONAL ARE NOT BILLABLE TO THE ESTATE. M. A PROFESSIONAL MAY ONLY CHARGE INTEREST ON THEIR UNPAID COMPENSATION OR UNPAID REIMBURSEMENT WITH COURT APPROVAL. 3. POINTS OF REFERENCE. THE COURT SHALL CONSIDER POINTS OF REFERENCE WHEN CONSIDERING HOURLY RATES AND CHARGES, AS NON-BINDING BUT INFORMATIVE AND PERSUASIVE CONSIDERATIONS, INCLUDING: A. THE USUAL AND CUSTOMARY FEES CHARGED IN THE RELEVANT PROFESSIONAL COMMUNITY FOR SUCH SERVICES AS PERIODICALLY REPORTED BY THE ADMINISTRATIVE OFFICE OF THE COURTS. SEE EXHIBIT A. B. TO THE EXTENT AUTHORIZED BY LAW, A NON-LICENSED FIDUCIARY WHO IS RELATED TO A PROTECTED PERSON, WARD, OR DECEDENT, MAY RECEIVE REASONABLE COMPENSATION FOR SERVICES AS A CONSERVATOR, GUARDIAN, OR PERSONAL REPRESENTATIVE, RESPECTIVELY, COMMENSURATE WITH THE SERVICES PERFORMED. C. THE NUMBER OF BILLABLE HOURS AND SERVICES RENDERED IN COMPARABLE CASES BEFORE THAT JUDICIAL OFFICER. D. AS ONLY A GENERAL BENCHMARK, THE COMMON FIDUCIARY SERVICES RENDERED IN A ROUTINE GUARDIANSHIP OR CONSERVATORSHIP ENGAGEMENT ARE AS FOLLOWS (THE FIDUCIARY SHOULD BE PREPARED TO PROVIDE A REASONABLE EXPLANATION FOR EXCEEDING THESE BENCHMARKS, UPON REQUEST BY THE COURT): Page 282 of 432 I. ROUTINE BOOKKEEPING, SUCH AS DISBURSEMENTS, BANK RECONCILIATION, DATA ENTRY OF INCOME AND EXPENDITURES, AND MAIL PROCESSING: FOUR (4) HOURS PER MONTH, AT A COMMENSURATE RATE FOR SUCH SERVICES. II. ROUTINE SHOPPING: SIX (6) HOURS PER MONTH IF WARD IS AT HOME, AND TWO (2) HOUR PER MONTH IF WARD IN A FACILITY, AT A COMMENSURATE RATE FOR SUCH SERVICES. III. ONE ROUTINE PERSONAL VISIT PER MONTH BY THE FIDUCIARY TO THE WARD OR PROTECTED PERSON. IV. PREPARATION OF CONSERVATOR’S ACCOUNT AND BUDGET: FIVE (5) HOURS PER YEAR. V. PREPARATION OF ANNUAL GUARDIANSHIP REPORT: TWO (2) HOURS PER YEAR. VI. MARSHALLING OF ASSETS AND PREPARATION OF INITIAL INVENTORY: EIGHTY (80) HOURS. E. NOT MORE THAN ONE ATTORNEY MAY BILL FOR ATTENDING HEARINGS, DEPOSITIONS, AND OTHER COURT PROCEEDINGS ON BEHALF OF A CLIENT, NOR BILL FOR STAFF TO ATTEND, ABSENT GOOD CAUSE. F. EACH FIDUCIARY AND GUARDIAN AD LITEM SHALL NOT BILL FOR MORE THAN ONE PERSON TO ATTEND HEARINGS, DEPOSITIONS, AND OTHER COURT PROCEEDINGS ON BEHALF OF AN ESTATE, ABSENT GOOD CAUSE. THIS PROVISION DOES NOT PRECLUDE AN ATTORNEY, WHO REPRESENTS A FIDUCIARY OR GUARDIAN AD LITEM, FROM SUBMITTING A SEPARATE BILL. G. THE TOTAL AMOUNT OF ALL ANNUAL EXPENDITURES, INCLUDING REASONABLE PROFESSIONALS FEES, MAY NOT DEPLETE THE ESTATE DURING THE ANTICIPATED LIFESPAN OF THE WARD OR PROTECTED PERSON, UNTIL AND UNLESS THE CONSERVATOR HAS DISCLOSED THAT THE CONSERVATORSHIP HAS AN ALTERNATIVE OBJECTIVE, SUCH AS PLANNED TRANSITION TO PUBLIC ASSISTANCE OR ASSET RECOVERY, AS SET FORTH IN THE DISCLOSURE REQUIRED BY RULE OF PROBATE PROCEDURE 30.3. 4. COMPENSATION FACTORS. THE COURT SHALL CONSIDER THE FOLLOWING FACTORS, AS GENERAL PRINCIPLES, NOT RIGID RULES, WHEN DETERMINING WHAT CONSTITUTES REASONABLE COMPENSATION: A. THE REQUEST FOR COMPENSATION IN COMPARISON TO THE PREVIOUSLY DISCLOSED BASIS FOR FEES, ANY PRIOR ESTIMATE BY Page 283 of 432 THE PROFESSIONAL, AND ANY COURT ORDER; [REFINE AFTER LEGISLATION IS ADOPTED] B. THE EXPERTISE, TRAINING, EDUCATION, EXPERIENCE, AND SKILL OF THE PROFESSIONAL IN TITLE 14 PROCEEDINGS; C. WHETHER AN APPOINTMENT IN PRECLUDED OTHER EMPLOYMENT; A PARTICULAR MATTER D. THE CHARACTER OF THE WORK TO BE DONE, INCLUDING DIFFICULTY, INTRICACY, IMPORTANCE, NECESSITY, TIME, SKILL OR LICENSE REQUIRED, OR RESPONSIBILITY UNDERTAKEN; E. THE CONDITIONS OR CIRCUMSTANCES OF THE WORK, INCLUDING EMERGENCY MATTERS (REQUIRING URGENT ATTENTION), SERVICES PROVIDED OUTSIDE REGULAR BUSINESS HOURS, POTENTIAL DANGER (E.G., HAZARDOUS MATERIALS, CONTAMINATED REAL PROPERTY, OR DANGEROUS PERSONS), OR OTHER EXTRAORDINARY CONDITIONS; F. THE WORK ACTUALLY PERFORMED, INCLUDING THE TIME ACTUALLY EXPENDED, AND THE ATTENTION AND SKILL-LEVEL REQUIRED FOR EACH TASK, INCLUDING WHETHER A DIFFERENT PERSON COULD HAVE RENDERED BETTER, FASTER OR LESS EXPENSIVE SERVICE; G. THE RESULT, SPECIFICALLY WHETHER BENEFITS WERE DERIVED FROM THE EFFORTS, AND WHETHER PROBABLE BENEFITS EXCEEDED COSTS; H. WHETHER THE PROFESSIONAL TIMELY DISCLOSED THAT A PROJECTED COST WAS LIKELY TO EXCEED THE PROBABLE BENEFIT, AFFORDING THE COURT AN OPPORTUNITY TO MODIFY ITS ORDER IN FURTHERANCE OF THE BEST INTEREST OF THE ESTATE. I. THE FEES CUSTOMARILY CHARGED AND TIME CUSTOMARILY EXPENDED FOR PERFORMING LIKE SERVICES IN THE COMMUNITY; J. THE DEGREE OF FINANCIAL RESPONSIBILITY ASSUMED; OR PROFESSIONAL RISK AND K. THE FIDELITY AND LOYALTY DISPLAYED BY THE PROFESSIONAL, INCLUDING WHETHER THE PROFESSIONAL PUT THE BEST INTEREST OF THE ESTATE BEFORE THE ECONOMIC INTEREST OF THE PROFESSIONAL; AND, L. THE “POINTS OF REFERENCE”, AS SET FORTH ABOVE. Page 284 of 432 5. NON-TRADITIONAL COMPENSATION ARRANGEMENTS. A. FLAT-FEE: UNLESS OTHERWISE PROHIBITED BY LAW OR RULE, FLAT-FEE COMPENSATION IS PERMISSIBLE, AND MAY INCLUDE ALL OR PART OF AN ENGAGEMENT, IF THE PREDICTABILITY OF COSTS IS ENHANCED AND IF THE ECONOMIC INTERESTS OF THE PROFESSIONAL ARE THEREBY BETTER ALIGNED WITH THE ESTATE. THE BASIS FOR ANY FLAT FEE COMPENSATION SHALL BE DISCLOSED IN ADVANCE, IN WRITING, SPECIFYING IN DETAIL THE SERVICES INCLUDED IN ANY FLAT-FEE, THE UNITS OF EACH SERVICE, AND THE USUAL HOURLY RATE FOR SUCH SERVICES. THE ACTUAL DELIVERY OF SERVICES INCLUDED WITH THE FLAT FEE SHALL BE DOCUMENTED. B. CONTINGENT FEE: UNLESS OTHERWISE PROHIBITED BY LAW OR RULE, NOTHING IN THESE GUIDELINES SHALL PROHIBIT A CONTINGENT FEE ENGAGEMENT WITH AN ATTORNEY, PROPERLY EXECUTED IN WRITING, E.G. REPRESENTATION ON A PERSONAL INJURY CLAIM. Page 285 of 432 EXHIBIT A FOR 2011 STATEWIDE FEE GUIDELINES FOR ASSESSING THE REASONABLENESS OF FIDUCIARY, GUARDIAN AD LITEM, AND ATTORNEY COMPENSATION IN TITLE 14 PROCEEDINGS This Exhibit shall be periodically updated by the Administrative Office of the Courts, and an updated Exhibit A may be downloaded at Hourly Professional Compensation Range Minimum Median Average Maximum Attorney Licensed Fiduciary Guardian ad Litem PLEASE NOTE: THE HOURLY RATES REPORTED IN EXHIBIT A ARE COMPILED BY THE ADMINISTRATIVE OFFICE OF THE COURTS AS A POINT OF REFERENCE ON ESTIMATED CURRENT MARKET RATES AMONG PROFESSIONALS BASED UPON CURRENTLY AVAILABLE INFORMATION. THESE RATES ARE NON-BINDING ON THE PARTIES, PROFESSIONALS OR THE COURT, BUT ARE INFORMATIVE AND PERSUASIVE AS AN INITIAL POINT OF REFERENCE IN DETERMINING REASONABLE COMPENSATION. ACTUAL COMPENSATION RATES WILL VARY BASED UPON OTHER FACTORS INCLUDING THE EXPERIENCE OF THE PROFESSIONAL, GEOGRAPHIC AREA OF SERVICE, AND RESOURCES OF THE FIRM. Page 286 of 432 Appendix N Compendium of all Recommended Rules, Forms, and Guidelines28 Proposed Amendments to the Arizona Rules of Probate Procedure Rule 5. Captions on Documents Filed With the Court A. Generally. All documents filed with the court in a probate case shall contain a caption that sets forth the name of the court, the title of the case, the file number, and a title that briefly describes the type of document being filed. The title of the case shall include the name of the subject person or trust, and, if the subject person is a minor, the title of the case shall note such minority. B. Civil Action or Family Law Proceeding Filed Within or Consolidated with a Probate Case. Any documents filed with the court in connection with a civil action, family law proceeding, or juvenile proceeding filed within or consolidated with a probate case, shall contain the caption required by section A of this rule, followed by a caption that complies with Rule 10(a), Arizona Rules of Civil Procedure, or Rule 30(A), Arizona Rules of Family Law Procedure. C. CONTINUATION OF CONSERVATORSHIP OR OTHER PROTECTIVE ORDER. A PETITION TO CONTINUE A MINOR CONSERVATORSHIP OR OTHER PROTECTIVE ORDER PURSUANT TO A.R.S. §14-5401(B) SHALL BE FILED IN THE PENDING PROTECTIVE PROCEEDING CASE. IF THE COURT GRANTS THE PETITION, THE CASE NUMBER SHALL REMAIN THE SAME BUT THE CAPTION SHALL BE AMENDED TO REFLECT THAT THE CONSERVATORSHIP OR OTHER PROTECTIVE ORDER IS FOR AN ADULT. Rule 7. Confidential Documents and Information A. Definitions. 1. For purposes of this rule, “confidential document” means the following: a. the probate information form filed pursuant to Rule 6 of these rules; 28 Proposed insertions to rules are shown by all-caps and deletions are shown by strike-outs. Page 287 of 432 b. medical reports and records obtained and filed with the court in connection with proceedings pursuant to A.R.S. §§ 14-5303, -5310, -5401.01, or -5407, or A.R.S. § 36-3206, or in connection with the requirements of A.R. S. § 14-5312.01 and -5312.02; c. GOOD FAITH ESTIMATES AND BUDGETS FILED PURSUANT TO RULES 30.1, 30.3, AND 30.4, ARIZONA RULES OF PROBATE PROCEDURE. d. c. inventories and appraisements filed pursuant to A.R.S. § 14-5418(A); e. d. accountings filed pursuant to A.R.S. Title 14; f. e. a credit report; or g. f. any other document ordered by the court to be filed or maintained as a confidential document pursuant to this rule. [Remainder of rule unchanged] Rule 8. Service of Court Papers. A. Whenever A.R.S. Title 14 requires the notice of a hearing or other document be served personally, service shall be conducted pursuant to rule 4(d), 4.1, and 4.2 of the Arizona Rules of Civil Procedure. B. IF SERVICE OF A NOTICE AND PETITION OR APPLICATION THAT COMMENCES A PROBATE CASE IS NOT MADE UPON ALL PERSONS REQUIRED IN THE MANNER PRESCRIBED BY A.R.S. TITLE 14 WITHIN 120 DAYS AFTER THE FILING OF THE INITIAL PETITION OR APPLICATION, THE COURT, UPON MOTION OR ITS OWN INITIATIVE AFTER NOTICE TO THE PETITIONER OR APPLICANT, MAY DISMISS THE PETITION OR APPLICATION WITHOUT PREJUDICE OR DIRECT THAT SERVICE BE EFFECTED WITHIN A SPECIFIED TIME; PROVIDED THAT IF THE PETITIONER OR APPLICANT SHOWS GOOD CAUSE FOR THE FAILURE PRIOR TO THE EXPIRATION OF TIME ALLOWED FOR SERVICE, THE COURT SHALL EXTEND THE TIME FOR SERVICE FOR AN APPROPRIATE PERIOD. Rule 10. Duties Owed to the Court BY COUNSEL, FIDUCIARIES, UNREPRESENTED PARTIES, AND INVESTIGATORS A. Duties of Counsel. 1. Responsibility to Court. Upon changing office address or telephone number, each attorney shall advise the clerk of court or the court administrator in each of the counties in which Page 288 of 432 that attorney has probate cases pending of the attorney's current office address and telephone number. 2. Limited Scope Representation. Subject to the limitations in ER 1.2(c), Rules of Professional Conduct, an attorney may make a limited appearance by filing a notice stating that the attorney and the party have a written agreement that the attorney will provide limited scope representation to the party and specifying the matter or issues with regard to which the attorney will represent the party. Service on an attorney who has made a limited appearance for a party shall be valid, to the extent permitted by statute and Rule 4(f), Arizona Rules of Civil Procedure, in all matters in the case, but shall not extend the attorney's responsibility to represent the client beyond the specific matter for which the attorney has agreed to represent the client. Nothing in this rule shall limit an attorney's ability to provide limited services to a client without appearing of record in any judicial proceedings. B. Duties of Unrepresented Parties. 1. An unrepresented party shall inform the court of his or her current address and telephone number. The person has a continuing duty to advise the court of any change in address or telephone number. 2. A person who is not an active member of the State Bar of Arizona or has not been admitted pro hac vice pursuant to the Rules of the Arizona Supreme Court may not represent family members or other lay persons during court proceedings. 3. A person who is not an active member of the State Bar of Arizona, an attorney admitted pro hac vice pursuant to the Rules of the Arizona Supreme Court, or certified as a legal document preparer by the Arizona Supreme Court may not prepare documents for another person to file with the court. C. Duties of Court-Appointed Fiduciaries. 1. A court-appointed fiduciary shall a. review all documents filed with the court that are prepared on the fiduciary's behalf; b. REFRAIN FROM CHARGING TO ATTEND COURT PROCEEDINGS, INCLUDING DEPOSITIONS, UNLESS SUCH ATTENDANCE IS REQUIRED BY LAW, COURT ORDER, OR OTHER CIRCUMSTANCES SUCH THAT THE FIDUCIARY’S ATTENDANCE IS NECESSARY; c b. if the fiduciary is a licensed fiduciary who is not also an active member of the State Bar of Arizona, place the fiduciary's license number on all documents signed by the fiduciary and filed with the court; Page 289 of 432 d c. file an updated probate information form that contains the information required by Rule 6 of these rules within ten days after any changes in such information, except that if the ward's physical address changes, the ward's guardian shall file the updated probate information form within three days of learning of the change in address; and e d. in the case of an updated probate information form that reflects a change of a subject person's address or telephone number or a change of the fiduciary's address or telephone number, mail or deliver a copy of the updated probate information form to the subject person's court-appointed attorney, the subject person's guardian ad litem, and all parties to the probate case in which the updated probate information form has been filed. 2. Duties Regarding Death of Ward or Protected Person. The court-appointed fiduciary shall do the following upon the death of the fiduciary's ward or protected person: a. A guardian or conservator appointed pursuant to A.R.S. Title 14 shall notify the court in writing of the ward or protected person's death within ten days of learning that the ward or protected person has died. b. Except as provided by in A.R.S. § 14-5419(F) or otherwise ordered by the court, a conservator shall file a final accounting of the protected person's estate within 90 days of the date of the protected person's death. The accounting shall reflect all activity between the ending date of the most recently approved accounting and the date of death of the protected person. The court may extend the date for filing the accounting or relieve the conservator from filing an annual or final accounting. 3. Termination of Appointment. Before a court-appointed fiduciary may resign from a case or have the fiduciary's responsibilities judicially terminated, the fiduciary shall comply with all statutory requirements for withdrawal, including the filing of final reports and accountings. 4. DUTIES REGARDING MINOR’S DEATH, ADOPTION, MARRIAGE OR EMANCIPATION. THE COURT-APPOINTED GUARDIAN OF A MINOR WARD WHO IS ADOPTED, MARRIES OR BECOMES EMANCIPATED SHALL NOTIFY THE COURT IN WRITING WITHIN TEN DAYS OF SUCH EVENT. IF THE MINOR DOES NOT HAVE A CONSERVATOR AT THE TIME THE GUARDIANSHIP TERMINATES, THE GUARDIAN SHALL PROVIDE THE COURT AND FORMER MINOR WARD WITH A WRITTEN LIST OF ANY KNOWN ASSETS OR MONIES BEYOND PERSONAL EFFECTS BELIEVED TO BE OWNED BY THE FORMER MINOR WARD. D. Duties Relating to Counsel for Fiduciaries Upon Withdrawal. 1. TO MINIMIZE LEGAL EXPENSES INCURRED BY THE BENEFICIARY OF THE FIDUCIARY RELATIONSHIP, A FIDUCIARY’S ATTORNEY SHALL ENCOURAGE THE Page 290 of 432 FIDUCIARY TO TAKE THOSE ACTIONS THE FIDUCIARY IS AUTHORIZED TO PERFORM AND CAN PERFORM COMPETENTLY ON THE FIDUCIARY’S OWN TO FULFILL THE FIDUCIARY’S DUTIES RATHER THAN HAVING THE ATTORNEY TAKE SUCH ACTIONS ON THE FIDUCIARY’S BEHALF. 2. In addition to the requirements set forth in Arizona Rule of Civil Procedure 5.1, an attorney who has appeared in a probate case as counsel of record for a guardian, conservator, personal representative, or trustee shall include with any motion to withdraw a status report that advises the court and parties of any issues pending in the probate case and informs the court and parties whether, to the best of the attorney's knowledge, all required guardian reports, inventories, accountings, and other similar required reports have been filed. E. Duties of Counsel for Subject Person of Guardianship/Conservatorship Proceeding.; DUTIES OF GUARDIAN AD LITEM 1. INITIAL TRAINING. ANY ATTORNEY WHO SERVES AS A COURTAPPOINTED ATTORNEY OR GUARDIAN AD LITEM FOR A PROPOSED ADULT WARD OR ADULT PROTECTED PERSON MUST FIRST COMPLETE A TRAINING COURSE PRESCRIBED BY THE SUPREME COURT, WHICH WILL ISSUE A CERTIFICATE OF COMPLETION. THE ATTORNEY MUST FILE A COPY OF THE CERTIFICATE OF COMPLETION WITH THE ADMINISTRATIVE OFFICE OF THE COURT OR THE SUPREME COURT’S DESIGNEE NO LATER THAN TEN DAYS AFTER ENTRY OF THE APPOINTMENT ORDER. ANY ATTORNEY WHO, AT THE TIME THIS RULE BECOMES EFFECTIVE, IS SERVING AS COURT-APPOINTED ATTORNEY OR GUARDIAN AD LITEM FOR AN ADULT WARD OR PROTECTED PERSON MUST COMPLETE A TRAINING COURSE PRESCRIBED BY THE SUPREME COURT AS SOON AS PRACTICABLE AND THEREAFTER MUST FILE A CERTIFICATE OF COMPLETION WITH THE ADMINISTRATIVE OFFICE OF THE COURT OR THE SUPREME COURT’S DESIGNEE. 2. SUBSEQUENT TRAINING. AFTER COMPLETING THE INITIAL TRAINING COURSE PRESCRIBED BY THE SUPREME COURT, ANY ATTORNEY WHO CONTINUES TO SERVE AS A COURT-APPOINTED ATTORNEY OR GUARDIAN AD LITEM FOR AN ADULT WARD OR PROTECTED PERSON MUST COMPLETE AN ADDITIONAL TRAINING COURSE PRESCRIBED BY THE SUPREME COURT EVERY FIVE YEARS AND FILE A CERTIFICATE OF COMPLETION AS SET FORTH IN SUBSECTION 1. 3. In a guardianship or conservatorship proceeding, the participation of an attorney representing the subject person shall terminate upon the subject person's death. In extraordinary situations, the court, for good cause shown, may authorize the limited participation of the subject person's attorney after the subject person's death. In such cases, the court shall set forth, in its Page 291 of 432 order authorizing the attorney's continued participation, the basis for the continued participation and the scope of the attorney's participation. F. DUTIES OF INVESTIGATORS. 1. BEFORE BEING APPOINTED AS AN INVESTIGATOR PURSUANT TO A.R.S. §§ 14-5303(C), 14-5407(B), OR 36-540(G), A PERSON MUST FIRST COMPLETE A TRAINING COURSE PRESCRIBED BY THE SUPREME COURT, WHICH WILL ISSUE A CERTIFICATE OF COMPLETION. THE INVESTIGATOR MUST FILE A COPY OF THE CERTIFICATE OF COMPLETION WITH THE ADMINISTRATIVE OFFICE OF THE COURT OR THE SUPREME COURT’S DESIGNEE. 2. AFTER COMPLETING THE INITIAL TRAINING COURSE PRESCRIBED BY THE SUPREME COURT, ANY PERSON WHO CONTINUES TO SERVE AS A COURTAPPOINTED INVESTIGATOR MUST COMPLETE AN ADDITIONAL TRAINING COURSE PRESCRIBED BY THE SUPREME COURT EVERY FIVE YEARS AND FILE A CERTIFICATE OF COMPLETION AS SET FORTH IN SUBSECTION A. RULE 10.1 FIDUCIARY’S AUTHORITY TO FILE DOCUMENTS AND APPEAR IN COURT PROCEEDINGS WHEN REPRESENTED BY COUNSEL. A. NOTWITHSTANDING AN ATTORNEY HAVING APPEARED IN A PROBATE CASE ON BEHALF OF A FIDUCIARY, A FIDUCIARY WHO IS REPRESENTED BY AN ATTORNEY IN A PROBATE CASE MAY SIGN AND FILE DIRECTLY WITH THE COURT ANY DOCUMENT EXCEPT A MOTION, A PETITION, AN APPLICATION, OR A CLOSING STATEMENT. B. A FIDUCIARY WHO FILES A DOCUMENT DIRECTLY WITH THE COURT PURSUANT TO THIS RULE SHALL BE RESPONSIBLE FOR SERVING A COPY OF SUCH DOCUMENT UPON THOSE PERSONS WHO, BY STATUTE, COURT RULE, OR COURT ORDER, ARE ENTITLED TO RECEIVE A COPY OF THE DOCUMENT. THE FIDUCIARY MUST ALSO PROVIDE THE FIDUCIARY’S ATTORNEY WITH A COPY OF THE DOCUMENT FILED DIRECTLY WITH THE COURT. C. UPON MOTION BY A FIDUCIARY’S ATTORNEY OF RECORD, THE COURT MAY AUTHORIZE THE FIDUCIARY TO APPEAR WITHOUT LEGAL REPRESENTATION IN A PARTICULAR COURT PROCEEDING AND COMMUNICATE WITH ANY OPPOSING COUNSEL IN CONNECTION WITH THAT PROCEEDING. Page 292 of 432 COMMENT THE COURT RECOGNIZES THAT FIDUCIARIES REPRESENTED BY COUNSEL MAY NOT NEED THE SERVICES OF COUNSEL TO FILE CERTAIN DOCUMENTS OR APPEAR IN CERTAIN COURT PROCEEDINGS. SOMETIMES, THE INVOLVEMENT OF COUNSEL IS UNNECESSARY AND CAN BE COSTLY TO AN ESTATE. RULE 10.1(C) PERMITS THE COURT TO AUTHORIZE THE FIDUCIARY TO APPEAR IN CERTAIN COURT PROCEEDINGS WITHOUT THE ATTORNEY OF RECORD UPON REQUEST BY THAT ATTORNEY. IT IS ANTICIPATED THAT SUCH REQUESTS WILL BE MADE FOR ROUTINE COURT APPEARANCES THAT DO NOT CONCERN CONTESTED ISSUES. TO BE CLEAR, THIS RULE APPLIES ONLY TO COURT FILINGS AND APPEARANCES AND DOES NOT AUTHORIZE A FIDUCIARY TO DRAFT OTHER LEGAL DOCUMENTS, SUCH AS ESTATE PLANNING DOCUMENTS. WHEN A REPRESENTED FIDUCIARY APPEARS WITHOUT THE ATTORNEY OF RECORD PURSUANT TO THIS RULE, OTHER COUNSEL MAY COMMUNICATE WITH THE FIDUCIARY IN CONNECTION WITH THAT PROCEEDING ONLY WITHOUT VIOLATING THE ATTORNEY’S ETHICAL OBLIGATION MANDATED BY ARIZ. R. SUP. CT. 42, ER 4.2. RULE 10.2: PRUDENT MANAGEMENT OF COSTS IN A PROCEEDING BROUGHT PURSUANT TO TITLE 14: A. THE FIDUCIARY MUST PRUDENTLY MANAGE COSTS, PRESERVE THE ASSETS OF THE WARD OR PROTECTED PERSON FOR THE BENEFIT OF THE WARD OR PROTECTED PERSON, AND PROTECT AGAINST INCURRING ANY COSTS THAT EXCEED PROBABLE BENEFITS TO THE WARD, PROTECTED PERSON, DECEDENT'S ESTATE OR TRUST, EXCEPT AS OTHERWISE DIRECTED BY A GOVERNING INSTRUMENT OR COURT ORDER. B. THE GUARDIAN AD LITEM, FIDUCIARY, FIDUCIARY'S ATTORNEY, ATTORNEY FOR THE WARD OR PROTECTED PERSON MUST TIMELY DISCLOSE TO THE COURT AND ALL PERSONS ENTITLED TO NOTICE IF THE PERSON HAS A REASONABLE BELIEF THAT PROJECTED COSTS OF COMPLYING WITH A COURT ORDER MAY EXCEED THE PROBABLE BENEFITS TO THE WARD, PROTECTED PERSON, DECEDENT'S ESTATE OR TRUST. IF APPROPRIATE, CONSISTENT WITH DUE PROCESS, THE COURT SHALL ENTER OR MODIFY THE ORDERS AS MAY PROTECT OR FURTHER THE BEST INTEREST OF THE WARD, PROTECTED PERSON, DECEDENT'S ESTATE OR TRUST AGAINST PROJECTED COSTS THAT EXCEED PROBABLE BENEFITS. Page 293 of 432 C. MARKET RATES FOR GOODS AND SERVICES ARE A PROPER, ONGOING CONSIDERATION FOR THE FIDUCIARY AND THE COURT DURING THE INITIAL COURT APPOINTMENT OF A FIDUCIARY OR ATTORNEY, A HEARING ON A BUDGET OBJECTION AND A REQUEST TO SUBSTITUTE A COURT-APPOINTED FIDUCIARY OR ATTORNEY. AT ANY STAGE OF THE PROCEEDINGS, THE COURT MAY ORDER THAT COMPETITIVE BIDS FOR GOODS OR SERVICES BE OBTAINED. RULE 15.1 APPOINTMENT OF GUARDIAN AD LITEM. A. A PARTY REQUESTING THE APPOINTMENT OF A GUARDIAN AD LITEM SHALL MAKE THE REQUEST IN A MOTION THAT SETS FORTH WHY THE APPOINTMENT IS NECESSARY OR ADVISABLE AND WHAT, IF ANY, SPECIAL EXPERTISE IS REQUIRED OF THE GUARDIAN AD LITEM. B. THE ORDER APPOINTING A GUARDIAN AD LITEM PURSUANT TO THIS SECTION SHALL CLEARLY SET FORTH THE SCOPE OF THE APPOINTMENT, INCLUDING THE REASONS FOR AND DURATION OF THE APPOINTMENT, RIGHTS OF ACCESS AS AUTHORIZED BY THIS RULE, AND THE APPLICABLE TERMS OF COMPENSATION. C. UPON APPOINTING A GUARDIAN AD LITEM, THE COURT MAY ENTER AN ORDER AUTHORIZING THE GUARDIAN AD LITEM TO HAVE IMMEDIATE ACCESS TO THE PERSON FOR WHOM THE GUARIAN AD LITEM HAS BEEN APPOINTTED AND ALL MEDICAL AND FINANCIAL RECORDS PERTAINING TO SUCH PERSON, INCLUDING RECORDS AND INFORMATION THAT ARE OTHERWISE PRIVILEGED OR CONFIDENTIAL. UPON RECEIPT OF A CERTIFIED COPY OF SUCH ORDER, THE CUSTODIAN OF ANY RELEVANT RECORD RELATING TO A PERSON FOR WHOM A GUARDIAN AD LITEM HAS BEEN APPOINTED SHALL PROVIDE THE GUARDIAN AD LITEM WITH ACCESS TO SUCH RECORD AS AUTHORIZED BY THE COURT’S ORDER. RULE 15.2. INVOLUNTARY TERMINATION OF APPOINTMENT; REMEDIES FOR NON-COMPLIANCE; DISMISSAL; SANCTIONS. OTHER A. DISMISSAL OF PROBATE, SPECIAL ADMINISTRATION OR SUBSEQUENT ADMINISTRATION PROCEEDINGS FOR LACK OF PROSECUTION. 1. TWO YEARS AFTER INITIATION OF A CASE FILED PURSUANT TO TITLE 14, CHAPTER 3, A.R.S., THE COURT SHALL ISSUE A NOTICE OF IMPENDING DISMISSAL OF THE CASE UNLESS AT LEAST ONE OF THE FOLLOWING HAS BEEN FILED IN THE CASE: Page 294 of 432 a. A CLOSING STATEMENT AUTHORIZED BY §14-3933; b. A PETITION TO SETTLE THE ESTATE AUTHORIZED BY §§14-3931, AND -3932; c. AN ORDER TERMINATING THE APPOINTMENT OF A SPECIAL ADMINISTRATOR PURSUANT TO §14-3618; d. AN ORDER SETTING THE CASE FOR FUTURE TRIAL, HEARING, OR CONFERENCE OR AN ORDER EXTENDING THE ADMINISTRATION OF THE ESTATE BEYOND TWO YEARS. 2. THE CLERK OF THE COURT OR COURT ADMINISTRATOR, WHOEVER IS DESIGNATED BY THE PRESIDING JUDGE, SHALL PROMPTLY NOTIFY PARTIES, HEIRS, DEVISEES, AND ALL WHO DEMAND NOTICE IN THE CASE OF THE IMPENDING DISMISSAL OF THE CASE. AT THE EXPIRATION OF 90 DAYS AFTER ISSUANCE OF THE NOTICE, THE COURT SHALL DISMISS THE CASE WITHOUT PREJUDICE AND TERMINATE THE APPOINTMENT OF THE PERSONAL REPRESENTATIVE OR SPECIAL ADMINISTRATOR WITHOUT A HEARING UNLESS AT LEAST ONE OF THE FOLLOWING HAS BEEN FILED IN THE CASE: a. ANY OF THE FOUR DOCUMENTS DESCRIBED ABOVE; b. A REQUEST FOR HEARING OR CONFERENCE; c. A PETITION TO TERMINATE THE APPOINTMENT OF THE PERSONAL REPRESENTATIVE OR SPECIAL ADMINISTRATOR; d. A STATUS REPORT DESCRIBING MATTERS THAT REMAIN TO BE RESOLVED. ANY TERMINATION OF THE APPOINTMENT OF THE PERSONAL REPRESENTATIVE OR SPECIAL ADMINISTRATOR UNDER THIS RULE SHALL NOT DISCHARGE THE FIDUCIARY FROM LIABILITY OR EXONERATE ANY BOND. THE COURT MAY EXTEND THE PERIODS SET FORTH IN THIS RULE PRIOR TO THEIR EXPIRATION FOR GOOD CAUSE SHOWN. B. TERMINATION OF A MINOR GUARDIANSHIP CASE. CONSISTENT WITH THE PROVISIONS OF A.R.S. § 14-5210, THE CLERK OF THE COURT OR COURT ADMINISTRATOR, WHOEVER IS DESIGNATED BY THE PRESIDING JUDGE, SHALL CLOSE A MINOR GUARDIANSHIP CASE FILED PURSUANT TO §§ 14-5201 TO -5212 UPON THE MINOR REACHING THE AGE OF MAJORITY, THE MINOR’S ADOPTION, MARRIAGE, EMANCIPATION, OR DEATH. IF THE COURT HAS REASON TO BELIEVE THAT THE MINOR HAS A DISABILITY OR IMPAIRMENT THAT MAY Page 295 of 432 NECESSITATE THE APPOINTMENT OF A GUARDIAN AFTER THE MINOR’S EIGHTEENTH BIRTHDAY, AND A PETITION HAS NOT BEEN FILED PURSUANT TO A.R.S. § 14-5303, THE COURT SHALL SET A STATUS HEARING NOT LESS THAN 90 DAYS PRIOR TO THE MINOR’S EIGHTEENTH BIRTHDAY TO DETERMINE WHETHER A PETITION FOR APPOINTMENT OF A GUARDIAN FOR AN ADULT SHOULD BE FILED. C. REMEDIES FOR NON-COMPLIANCE BY A GUARDIAN OR CONSERVATOR FOR AN ADULT. IN THE EVENT A GUARDIAN OR CONSERVATOR FAILS TO COMPLY WITH ANY REQUIREMENTS OF A.R.S. TITLE 14, COURT RULES, OR A COURT ORDER, THE COURT MAY ENTER ANY ORDER APPROPRIATELY DESIGNED TO ENSURE COMPLIANCE WITH LEGAL REQUIREMENTS OR PROTECT THE BEST INTEREST OF THE WARD OR PROTECTED PERSON, INCLUDING: 1. ORDER THE GUARDIAN OR CONSERVATOR TO COMPLY WITHIN A TIME CERTAIN; 2. ISSUE AN ORDER TO SHOW CAUSE PURSUANT TO RULE 35 REQUIRING THE GUARDIAN OR CONSERVATOR TO SHOW CAUSE WHY APPROPRIATE ACTIONS SHOULD NOT BE TAKEN BY THE COURT; 3. APPOINT A COURT INVESTIGATOR TO INVESTIGATE THE REASONS FOR THE GUARDIAN’S OR CONSERVATOR’S NON-COMPLIANCE AND REPORT TO THE COURT REGARDING THE INVESTIGATOR'S FINDINGS AND PROPOSED RECOMMENDATIONS; 4. TERMINATE THE GUARDIANSHIP OR CONSERVATORSHIP PROCEEDING IF THE COURT DETERMINES THAT DISMISSAL IS APPROPRIATE. THE COURT SHALL NOT TERMINATE A GUARDIANSHIP OR CONSERVATORSHIP CASE IF THE COURT HAS REASON TO BELIEVE THE WARD REMAINS INCAPACITATED OR THE PROTECTED PERSON REMAINS IN NEED OF PROTECTION AND SUCH PERSON CONTINUES TO RESIDE IN ARIZONA; OR, 5. IMMEDIATELY SUSPEND OR TERMINATE THE AUTHORITY OF THE GUARDIAN OR CONSERVATOR TO TAKE ANY FURTHER ACTION ON BEHALF OF THE WARD OR THE ESTATE AND APPOINT A SUCCESSOR OR TEMPORARY FIDUCIARY; 6. INITIATE PROCEEDINGS THAT MAY RESULT IN ISSUANCE OF A FIDUCIARY ARREST WARRANT PURSUANT TO A.R.S. § 14-5701; OR 7. ENTER SUCH OTHER ORDER AS MAY BE APPROPRIATE IN THE CIRCUMSTANCES OF THE CASE. Page 296 of 432 D. GENERAL INVOLUNTARY TERMINATION. IF NO ACTION OR HEARING OCCURS FOR A PERIOD OF SIX MONTHS AFTER A CASE IS INITATED UNDER A.R.S. TITLE 14, THE COURT SHALL ISSUE A NOTICE THAT THE CASE WILL BE ADMINISTRATIVELY TERMINATED IN 90 DAYS WITHOUT HEARING, UNLESS BEFORE THAT DATE THE INITIATING PARTY FILES WITH THE COURT A REQUEST FOR ACTION OR A STATUS REPORT THAT DESCRIBES MATTERS REMAINING FOR RESOLUTION. THE NOTICE SHALL BE PROVIDED TO ALL PARTIES, PERSONS ENTITLED TO NOTICE OF THE COMMENCEMENT OF THE CASE, AND ANY PERSON WHO FILED A DEMAND FOR NOTICE. E. EFFECT OF DISMISSAL. UNLESS OTHERWISE ORDERED BY THE COURT, THE ENTRY OF AN ORDER DISMISSING A CASE SERVES TO DISMISS ALL PENDING MATTERS IN THE CASE WITHOUT PREJUDICE BUT DOES NOT DISMISS, VACATE, OR SET ASIDE ANY FINAL ORDER APPROVING ACCOUNTINGS OR APPROVING OTHER ACTIONS OF A PERSON APPOINTED PURSUANT TO A.R.S TITLE 14. F. DISMISSAL AUTHORITY. THE AUTHORITY OF THE COURT TO ISSUE NOTICES, DISMISS CASES AND TERMINATE APPOINTMENTS UNDER THIS RULE MAY BE PERFORMED BY COURT ADMINISTRATION OR BY AN APPROPRIATE ELECTRONIC PROCESS UNDER SUPERVISION OF THE COURT. Rule 18. Motions A. Generally. A motion shall be filed with the court when a party seeks procedural rather than substantive relief. B. Motions for Appointment of Guardian Ad Litem or Counsel. A party requesting the appointment of a guardian ad litem or counsel shall make such request in a motion that sets forth why the appointment is necessary or advisable and what, if any, special expertise is required ofthe guardian ad litem or counsel. C. IF A PARTY HAS A GOOD FAITH BELIEF THAT AN INTERESTED PERSON HAS FILED A MOTION OR PETITION THAT REQUESTS THE SAME OR SUBSTANTIALLY SIMILAR RELIEF TO THE RELIEF REQUESTED IN AN EARLIER MOTION OR PETITION FILED BY THE SAME INTERESTED PERSON WITHIN THE PRECEDING TWELVE MONTHS, AND IF THE LATER FILED MOTION OR PETITION DOES NOT DESCRIBE IN DETAIL A CHANGE IN FACT OR CIRCUMSTANCE THAT SUPPORTS THE REQUESTED RELIEF, THE PARTY MAY FILE A NOTICE OF REPETITIVE FILING. THIS NOTICE SHALL BE FILED NO LATER THAN THE RESPONSE OR OBJECTION DEADLINE FOR THE ALLEGEDLY REPETITIVE FILING AND SHALL INCLUDE THE TITLE AND DATE OF THE ALLEGED REPETITIVE FILING, THE TITLE AND DATE OF Page 297 of 432 THE EARLIER FILING, AND THE DATE OF THE COURT’S RULING ON THE EARLIER FILING. A NOTICE OF REPETITIVE FILING SHALL HAVE THE EFFECT OF STAYING THE DEADLINE TO RESPOND OR OBJECT TO THE ALLEGED REPETITIVE FILING UNTIL FURTHER ORDER OF THE COURT. THE COURT MAY SUMMARILY STRIKE A REPETITIVE MOTION, WITHOUT HEARING, ON ITS OWN INITIATIVE OR FOLLOWING RECEIPT OF A NOTICE OF REPETITIVE FILING. COMMENT ARIZONA REVISED STATUTES SECTION 14-1109 PERMITS THE COURT TO SUMMARILY DENY A REPETITIVE MOTION OR PETITION, AS DESCRIBED IN THE STATUTE. RULE 18(C) PROVIDES A COST-EFFECTIVE MECHANISM FOR A PARTY TO INFORM THE COURT OF A GOOD FAITH BELIEF THAT A MOTION OR PETITION IS REPETITIVE WITHOUT WAIVING THE RIGHT TO FILE A RESPONSE OR OBJECTION SHOULD THE COURT ULTIMATELY DETERMINE THAT THE MOTION OR PETITION IS NOT REPETITIVE. NOTHING IN THIS RULE IS INTENDED TO PRECLUDE THE COURT ON ITS OWN MOTION FROM SUMMARILY DENYING A REPETITIVE MOTION OR PETITION. Rule 19. Appointment of Attorney, Medical Professional, and Investigator A. A request for the appointment of an attorney, medical professional, and investigator may be included in the petition for the appointment of a guardian or conservator and need not be made by separate motion. A separate form of order for the appointment of an attorney, a medical professional, and an investigator shall be submitted to the court within three days after the request is made. B. ABSENT GOOD CAUSE, A PARTY WHO SEEKS THE APPOINTMENT OF A GUARDIAN OR CONSERVATOR SHALL NOT NOMINATE A SPECIFIC ATTORNEY TO REPRESENT THE SUBJECT PERSON UNLESS THE ATTORNEY HAS AN EXISTING OR PRIOR ATTORNEY-CLIENT RELATIONSHIP WITH THE SUBJECT PERSON. If a party who seeks the appointment of a guardian or conservator nominates a specific attorney to represent the SUBJECT PERSON alleged incapacitated person or the person alleged to be in need of protection, the party shall, in the petition for appointment of guardian or conservator, describe the attorney's prior relationship, if any, with the petitioner and the SUBJECT PERSON alleged incapacitated person or the person alleged to be in need of protection. C. UNLESS OTHERWISE ORDERED BY THE COURT, AN ATTORNEY SHALL NOT BE APPOINTED, ACCEPT AN APPOINTMENT, OR REMAIN APPOINTED AS THE ATTORNEY OR GUARDIAN AD LITEM FOR THE SUBJECT PERSON IF THE ATTORNEY HAS AN EXISTING ATTORNEY-CLIENT RELATIONSHIP WITH THE NOMINATED OR APPOINTED FIDUCIARY. Page 298 of 432 D.C. If a party who seeks the appointment of a guardian or conservator nominates a specific medical professional to evaluate the alleged incapacitated person or the person alleged to be in need of protection, the party shall, in the petition for appointment of guardian or conservator, describe the medical professional's prior relationship, if any, with the petitioner and the alleged incapacitated person or the person alleged to be in need of protection. E. D. Noncompliance with this rule may be cause for continuing the hearing on the petition for appointment of guardian or conservator to such time as the judicial officer directs. Rule 22. ORDERS APPOINTING CONSERVATORS, GUARDIANS, AND PERSONAL REPRESENTATIVES; Bonds and Bond Companies; RESTRICTED ASSETS A. ORDERS. Every order appointing a conservator or a personal representative shall plainly state the amount of bond required. Neither letters of conservator nor letters of personal representative shall be issued to any person until any required bond has been has filed with the clerk of court. EVERY ORDER APPOINTING A CONSERVATOR, GUARDIAN, OR PERSONAL REPRESENTATIVE SHALL INCLUDE THE FOLLOWING LANGUAGE: “WARNING: THIS APPOINTMENT IS NOT EFFECTIVE UNTIL THE LETTERS OF APPOINTMENT HAVE BEEN ISSUED BY THE CLERK OF THE SUPERIOR COURT.” B. Bonds. Each fiduciary bond filed with the clerk of court shall state on the bond or on an attachment to the bond the name and address of the bonding company's statutory agent or other person authorized to accept service of process for the bonding company in the State of Arizona. The bonding company shall promptly notify the clerk of court of any change in the company's statutory agent or in the statutory agent's address. C. RESTRICTED ACCOUNTS 1. EVERY ORDER APPOINTING A CONSERVATOR OR PERSONAL REPRESENTATIVE, OR THAT AUTHORIZES A SINGLE TRANSACTION OR OTHER PROTECTIVE ARRANGEMENT PURSUANT TO A.R.S. §14-5409, SHALL PLAINLY STATE ANY RESTRICTIONS ON THE FIDUCIARY’S AUTHORITY TO MANAGE MONETARY ASSETS OF THE ESTATE. 2. IF THE RESTRICTION AFFECTS THE FIDUCIARY’S ABILITY TO MANAGE MONETARY ASSETS OF THE ESTATE, THE ORDER AND, UNLESS OTHERWISE ORDERED BY THE COURT, ANY LETTERS THAT ISSUE SHALL CONTAIN THE FOLLOWING LANGUAGE: “FUNDS SHALL BE DEPOSITED INTO AN INTERESTBEARING, FEDERALLY INSURED RESTRICTED ACCOUNT AT A FINANCIAL INSTITUTION ENGAGED IN BUSINESS IN ARIZONA. NO WITHDRAWALS OF PRINCIPAL OR INTEREST MAY BE MADE WITHOUT CERTIFIED ORDER OF THE Page 299 of 432 SUPERIOR COURT. UNLESS OTHERWISE ORDERED BY THE COURT, REINVESTMENT MAY BE MADE WITHOUT FURTHER COURT ORDER SO LONG AS FUNDS REMAIN INSURED AND RESTRICTED IN THIS INSTITUTION AT THIS BRANCH.” 3. UNLESS OTHERWISE ORDERED BY THE COURT, THE FIDUCIARY SHALL FILE A PROOF OF RESTRICTED ACCOUNT FOR EVERY ACCOUNT ORDERED RESTRICTED BY THE COURT WITHIN 30 DAYS AFTER THE ORDER OR LETTERS, WHETHER TEMPORARY OR PERMANENT, ARE FIRST ISSUED. 4. UNLESS OTHERWISE ORDERED BY THE COURT, AN ATTORNEY WHO REPRESENTS THE FIDUCIARY, THE WARD, PROTECTED PERSON, OR INSURANCE COMPANY AND WHO IS THE RECIPIENT OF ANY PROCEEDS TO BE RESTRICTED FOR THE BENEFIT OF A MINOR, INCAPACITATED PERSON OR PROTECTED PERSON, SHALL ENSURE THE ESTABLISHMENT OF THE RESTRICTED ACCOUNT, PROPER TITLING OF THE SAME, AND SAFE DEPOSIT OF THE RESTRICTED FUNDS. THE ATTORNEY SHALL FILE A PROPERLY EXECUTED PROOF OF RESTRICTED ACCOUNT FORM EXECUTED BY AN AUTHORIZED REPRESENTATIVE OF THE FINANCIAL INSTITUTION WITHIN 30 DAYS AFTER THE ISSUANCE OF LETTERS OR ENTRY OF A SINGLE TRANSACTION ORDER. D. RESTRICTED REAL PROPERTY 1. EVERY ORDER APPOINTING A CONSERVATOR OR A PERSONAL REPRESENTATIVE, OR THAT AUTHORIZES A SINGLE TRANSACTION OR OTHER PROTECTIVE ARRANGEMENT PURSUANT TO A.R.S. §14-5409, SHALL PLAINLY STATE ANY RESTRICTIONS ON THE AUTHORITY TO SELL, LEASE, ENCUMBER OR CONVEY REAL PROPERTY OF THE ESTATE. NEITHER LETTERS OF CONSERVATOR NOR PERSONAL REPRESENTATIVE SHALL BE ISSUED BY THE CLERK OF THE COURT TO ANY PERSON UNLESS THE LANGUAGE RESTRICTING THE FIDUCIARY’S AUTHORITY IS CONTAINED IN THE LETTERS. 2. IF THE RESTRICTION LIMITS THE FIDUCIARY’S AUTHORITY TO MANAGE REAL PROPERTY, THE ORDER APPOINTING THE CONSERVATOR OR PERSONAL REPRESENTATIVE, OR THAT AUTHORIZES OR RATIFIES THE TRANSACTION SHALL CONTAIN THE FOLLOWING LANGUAGE: “NO REALTY SHALL BE LEASED FOR MORE THAN ONE YEAR, SOLD, ENCUMBERED OR CONVEYED WITHOUT PRIOR COURT ORDER.” Page 300 of 432 Rule 26. Issuance AND RECORDING of Letters A. If the appointment of a fiduciary is limited in time by statute or court order, the letters issued shall reflect the termination date of the appointment. B. Any restrictions on the authority of the fiduciary to act shall be reflected in the letters issued. IF THE COURT RESTRICTS THE AUTHORITY OF A CONSERVATOR, GUARDIAN OR PERSONAL REPRESENTATIVE, THE CLERK OF THE COURT SHALL NOT ISSUE LETTERS OF CONSERVATOR, GUARDIAN, OR PERSONAL REPRESENTATIVE UNLESS THE LANGUAGE RESTRICTING THE FIDUCIARY’S AUTHORITY IN THE COURT’S ORDER IS CONTAINED IN THE LETTERS OF APPOINTMENT. C. The clerk of court shall not issue letters of guardian, conservator, personal representative, or special administrator until the fiduciary has filed the bond or other security, if a bond or other security is required by the court. D. Before issuing certified copies of letters of appointment, the clerk of court shall verify that the fiduciary's appointment is still in effect. E. PURSUANT TO A.R.S. § 14-5421, A CONSERVATOR SHALL FILE AND RECORD A CERTIFIED COPY OF THE LETTERS WITH THE OFFICE OF THE COUNTY RECORDER IN ALL COUNTIES WHERE THE ESTATE OWNS REAL PROPERTY. THE CONSERVATOR SHALL ALSO FILE A COPY OF THE RECORDED LETTERS WITH THE COURT WITHIN 30 DAYS AFTER ISSUANCE OF THE CONSERVATOR’S LETTERS. RULE 26.1: WRITTEN FINDINGS ON APPOINTMENT FOLLOWING A WRITTEN REQUEST BY A PERSON WITH HIGHER PRIORITY FOR APPOINTMENT AS A GUARDIAN OR CONSERVATOR BUT WHO WAS PASSED OVER BY THE COURT IN FAVOR OF APPOINTING A PERSON WITH LOWER PRIORITY, THE COURT SHALL MAKE A SPECIFIC FINDING REGARDING THE COURT'S DETERMINATION OF GOOD CAUSE AND WHY THE PERSON WAS NOT APPOINTED. THE REQUEST MUST BE MADE WITHIN TEN DAYS AFTER THE ENTRY OF THE ORDER. RULE 27.1. TRAINING FOR NON-LICENSED FIDUCIARIES. A. ANY PERSON WHO IS NEITHER A LICENSED FIDUCIARY UNDER A.R.S. § 14-5651 NOR A FINANCIAL INSTITUTION SHALL COMPLETE A TRAINING PROGRAM APPROVED BY THE SUPREME COURT BEFORE LETTERS TO SERVE AS A Page 301 of 432 GUARDIAN, CONSERVATOR, OR PERSONAL REPRESENTATIVE ARE ISSUED UNLESS THE APPOINTMENT WAS MADE PURSUANT TO SECTIONS 14-5310(A), 145401.01(A) OR 14-5207(C). B. IF THE APPOINTMENT WAS MADE BECAUSE AN EMERGENCY EXISTED, THE FIDUCIARY SHALL COMPLETE THE TRAINING PROGRAM WITHIN THIRTY DAYS OF APPOINTMENT OR BEFORE THE PERMANENT APPOINTMENT OF THE FIDUCIARY, WHICHEVER IS EARLIER. FOR GOOD CAUSE, THE COURT MAY EXTEND THE TIME PERIOD FOR THE FIDUCIARY TO COMPLETE THE TRAINING PROGRAM. C. FOR PURPOSES OF THIS RULE, “FINANCIAL INSTITUTION” MEANS A BANK THAT IS INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION AND CHARTERED UNDER THE LAWS OF THE UNITED STATES OR ANY STATE, A TRUST COMPANY THAT IS OWNED BY A BANK HOLDING COMPANY THAT IS REGULATED BY THE FEDERAL RESERVE BOARD, OR A TRUST COMPANY THAT IS CHARTERED UNDER THE LAWS OF THE UNITED STATES OR THIS STATE. Rule 28. Pretrial Procedures A. Initial Procedures; Scheduling Conference. 1. If a matter is contested, unless the parties agree otherwise, the court shall set a scheduling conference that shall occur promptly after the date of the initial hearing on the petition. The scheduling conference may be held at the time set for the initial hearing on the petition. At the scheduling conference, the court and the parties shall address the following issues: a. the deadline for filing a written objection if one has not already been filed; b. the deadline for filing a joint alternative dispute resolution statement pursuant to Rule 29 16(g), Arizona Rules of Civil Procedure; c. any other issues the court or the parties deem relevant. 2. Unless inconsistent with these rules, Rule 16(b), Arizona Rules of Civil Procedure, shall apply to all pre-trial conferences. 3. Following the scheduling conference, the court shall enter an order setting forth the deadlines determined at the scheduling conference. B. Discovery and Disclosure. Unless inconsistent with these rules, Rules 26 through 37(f), Arizona Rules of Civil Procedure, shall apply to discovery and disclosure in contested probate proceedings. Page 302 of 432 C. Procedure for Evidentiary Hearing. Except as otherwise provided in A.R.S. Title 14 or these rules, Rules 38 and 39 through 53, Arizona Rules of Civil Procedure, shall apply to evidentiary hearings in probate proceedings. Rule 38.1, Arizona Rules of Civil Procedure, shall not apply to contested probate proceedings unless otherwise ordered by the court. Rule 29. Arbitration ALTERNATIVE DISPUTE RESOLUTION Unless the parties to a contested matter agree otherwise, Rules 72 through 76, Arizona Rules of Civil Procedure, pertaining to compulsory arbitration, shall not apply. A. THE PARTIES TO A CONTESTED MATTER ARE NOT SUBJECT TO COMPULSORY ARBITRATION AS SET FORTH IN RULES 72 THROUGH 77, ARIZONA RULES OF CIVIL PROCEDURE. THE COURT IS AUTHORIZED BY ARIZONA REVISED STATUTES SECTION 14-1108, HOWEVER, TO ORDER ALTERNATIVE DISPUTE RESOLUTION, INCLUDING ARBITRATION. IF THE COURT ORDERS ARBITRATION, THE ARBITRATION SHALL BE GOVERNED BY RULES 73 THROUGH 77, ARIZONA RULES OF CIVIL PROCEDURE. B. UPON MOTION OF ANY PARTY OR UPON ITS OWN INITIATIVE, THE COURT MAY DIRECT THE PARTIES TO PARTICIPATE IN ONE OR MORE ALTERNATIVE DISPUTE RESOLUTION PROCESSES, INCLUDING BUT NOT LIMITED TO ARBITRATION, MEDIATION, SETTLEMENT CONFERENCE, OPEN NEGOTIATION, OR A PRIVATE DISPUTE RESOLUTION PROCESS AGREED UPON BY THE PARTIES. C. NO LATER THAN THIRTY (30) DAYS AFTER A PROBATE PROCEEDING BECOMES CONTESTED AS DEFINED BY RULE 27, THE PARTIES SHALL CONFER, EITHER IN PERSON OR BY TELEPHONE, ABOUT: 1. THE POSSIBILITIES FOR A PROMPT SETTLEMENT OR RESOLUTION OF THE CASE; AND 2. WHETHER THE PARTIES MIGHT BENEFIT FROM PARTICIPATION IN SOME ALTERNATIVE DISPUTE RESOLUTION PROCESS, THE TYPE OF PROCESS THAT WOULD BE MOST APPROPRIATE IN THEIR CASE, THE SELECTION OF AN ALTERNATIVE DISPUTE RESOLUTION SERVICE PROVIDER, AND THE SCHEDULING OF THE PROCEEDINGS. D. THE PARTIES ARE RESPONSIBLE FOR ATTEMPTING IN GOOD FAITH TO AGREE ON AN ALTERNATIVE DISPUTE RESOLUTION PROCESS AND FOR REPORTING THE OUTCOME OF THEIR CONFERENCE TO THE COURT. WITHIN FIFTEEN (15) DAYS Page 303 of 432 AFTER THEIR CONFERENCE, THE PARTIES SHALL INFORM THE COURT OF THE FOLLOWING: 1. IF THE PARTIES HAVE AGREED TO USE A SPECIFIC ALTERNATIVE DISPUTE RESOLUTION PROCESS, THE TYPE OF ALTERNATIVE DISPUTE RESOLUTION PROCESS TO BE USED, THE NAME AND ADDRESS OF THE ALTERNATIVE DISPUTE RESOLUTION SERVICE PROVIDER THEY WILL USE, AND THE DATE BY WHICH THE ALTERNATIVE DISPUTE RESOLUTION PROCEEDINGS ARE ANTICIPATED TO BE COMPLETED; 2. IF THE PARTIES HAVE NOT AGREED TO USE A SPECIFIC ALTERNATIVE DISPUTE RESOLUTION PROCESS, THE POSITION OF EACH PARTY AS TO THE TYPE OF ALTERNATIVE DISPUTE RESOLUTION PROCESS APPROPRIATE FOR THE CASE OR, IN THE ALTERNATIVE, WHY ALTERNATIVE DISPUTE RESOLUTION IS NOT APPROPRIATE; AND 3. IF ANY PARTY REQUESTS THAT THE COURT CONDUCT A CONFERENCE TO CONSIDER ALTERNATIVE DISPUTE RESOLUTION. E. DURING THE ALTERNATIVE DISPUTE RESOLUTION PROCESS, THE PARTIES HAVE A DUTY TO PARTICIPATE IN GOOD FAITH. RULE 29.2: REMEDIES FOR VEXATIOUS CONDUCT; DEFINITIONS A. IF THE COURT FINDS THAT A PERSON ENGAGED IN VEXATIOUS CONDUCT IN CONNECTION WITH A PROBATE CASE, THE COURT MAY DO EITHER OR BOTH OF THE FOLLOWING: 1. ORDER THAT THE PERSON MUST OBTAIN THE COURT’S PERMISSION TO FILE FUTURE PLEADINGS AND OTHER PAPERS IN THE PROBATE CASE OR IN OTHER CASES. IF THE COURT ENTERS SUCH AN ORDER, NO PARTY IS REQUIRED TO RESPOND TO THE PERSON’S FUTURE FILINGS UNTIL ORDERED TO DO SO BY THE COURT. 2. ORDER THAT A FIDUCIARY, FIDUCIARY'S ATTORNEY, COURTAPPOINTED ATTORNEY GUARDIAN AD LITEM, TRUSTEE OR PERSONAL REPRESENTATIVE DOES NOT HAVE TO RESPOND TO FUTURE REQUESTS FOR INFORMATION MADE BY THE PERSON RELATED TO THE PROBATE CASE UNLESS REQUIRED BY SUBSEQUENT COURT ORDER. B. THE REMEDIES PERMITTED PURSUANT TO THIS SECTION ARE IN ADDITION TO ANY OTHER CIVIL REMEDY OR ANY OTHER PROVISION OF LAW. Page 304 of 432 C. FOR THE PURPOSES OF THIS SECTION: 1. "COURT-APPOINTED ATTORNEY" MEANS AN ATTORNEY APPOINTED PURSUANT TO SECTION 14-5303, SUBSECTION C, SECTION 14-5310, SUBSECTION C, SECTION 14-5401.01, SUBSECTION C OR SECTION 14-5407, SUBSECTION B. 2. "FIDUCIARY" MEANS AN AGENT UNDER A DURABLE POWER OF ATTORNEY, AN AGENT UNDER A HEALTH CARE POWER OF ATTORNEY, A GUARDIAN, A CONSERVATOR, A PERSONAL REPRESENTATIVE, A TRUSTEE OR A GUARDIAN AD LITEM. 3. "VEXATIOUS CONDUCT" MEANS HABITUAL, REPETITIVE CONDUCT UNDERTAKEN SOLELY OR PRIMARILY TO HARASS OR MALICIOUSLY INJURE ANOTHER PARTY OR THAT PARTY’S REPRESENTATIVE, CAUSE UNREASONABLE DELAY IN PROCEEDINGS, CAUSE UNDUE HARM TO THE WARD OR PROTECTED PERSON, OR CAUSE UNNECESSARY EXPENSE. IT DOES NOT INCLUDE CONDUCT UNDERTAKEN IN GOOD FAITH. Rule 30. Guardianships/Conservatorships-Specific Procedures A. Inventories INVENTORY. 1. Unless otherwise ordered by the court, the conservator shall file the inventory of the protected person's estate, AS REQUIRED BY A.R.S. SECTION 14-5418(A), within 90 days after the conservator's letters of conservator, whether temporary or permanent, are first issued. The inventory shall list all property owned by the protected person as of the date the conservator's letters of conservator, whether temporary or permanent, were first issued, and shall provide the values of such assets as of the date of the conservator's first appointment. 2. If the conservator is unable to file the inventory within 90 days after the conservator's letters of conservator, whether temporary or permanent, are first issued, the conservator shall, before the deadline, file a motion that requests additional time to file the inventory. Such motion shall state why additional time is required and how much additional time is required to file the inventory. 3. If, after filing the inventory but before filing the conservator's first ACCOUNT accounting, the conservator discovers an additional asset or discovers that the value of an asset on the inventory, whether appraised or not, is erroneous or misleading, the conservator shall file an amended inventory. If the conservator files an amended inventory because the conservator has discovered an additional asset and if the additional asset is not already subject to a court-ordered restriction, the conservator shall, with the amended inventory, file a petition requesting the court to either increase the amount of the conservator's bond or enter an order restricting the sale, conveyance, or encumbrance of the additional asset. Page 305 of 432 4. Unless permitted by the court, after a conservator has filed the conservator's first ACCOUNT accounting with the court, the conservator shall not amend the inventory. If the conservator discovers any assets after the filing of the conservator's first ACCOUNT accounting or if the conservator discovers that the value of an asset listed on the inventory is erroneous or misleading, the conservator shall make the appropriate adjustments on the conservator's subsequent ACCOUNTS accountings. B. CONSERVATOR’S ACCOUNTS Accountings. 1. Unless otherwise ordered by the court, the conservator's first ACCOUNT accounting shall reflect all activity relating to the conservatorship estate from the date the conservator's letters were first issued through and including the last day of the ninth month after the date the conservator's permanent letters were issued and shall be filed with the court on or before the anniversary date of the issuance of the conservator's permanent letters. For each bank or securities account listed on the ending balance schedule of the ACCOUNT accounting, the conservator shall attach to the ACCOUNT accounting a copy of the monthly statement that corresponds to the ending balance of such account as reflected on the ACCOUNT accounting. 2. Unless otherwise ordered by the court, all subsequent ACCOUNTS accountings shall reflect all activity relating to the conservatorship estate from the ending date of the most recent previously filed ACCOUNT accounting through and including the last date of the twelfth month thereafter, and shall be filed with the court on or before the anniversary date of the issuance of the conservator's permanent letters. For each bank or securities account listed on the ending balance schedule of the ACCOUNT accounting, the conservator shall attach to the ACCOUNT accounting a copy of the monthly statement that corresponds to the ending balance of such account as reflected on the ACCOUNT accounting. 3. UNLESS OTHERWISE ORDERED BY THE COURT, THE CONSERVATOR’S ACCOUNT SHALL BE FILED IN THE FORMAT SET FORTH IN THE APPROPRIATE FORM CONTAINED IN RULE 38 OF THESE RULES. 4.3. Unless otherwise ordered by the court and except as provided in A.R.S. § 145419(F), a conservator shall file a final ACCOUNT accounting for a deceased protected person within 90 days after the date of the protected person's death. 5.4. If the conservator is unable to file an ACCOUNT accounting within the time set forth in this rule, the conservator shall, before the deadline, file a motion that requests additional time to file the ACCOUNT accounting. The motion shall, at a minimum, state why additional time is required and how much additional time is required to file the ACCOUNT accounting. 6.5. For purposes of this rule, if the conservator's appointment initially was temporary, “the date the conservator's letters were first issued” shall mean the date the conservator's Page 306 of 432 temporary letters were issued; otherwise, “the date the conservator's letters were first issued” shall mean the date the conservator's permanent letters were issued. C. Annual Guardian Reports 1. Unless otherwise ordered by the court, the guardian's first annual report shall cover the time from the date the guardian's letters were first issued through and including the last day of the ninth month after the date the guardian's permanent letters were issued. The report shall be filed with the court on or before the anniversary date of the issuance of the guardian's permanent letters. 2. Unless otherwise ordered by the court, all subsequent annual reports of guardian shall cover the time from the ending date of the most recent previously filed annual report of guardian through and including the last date of the twelfth month thereafter. The report shall be filed with the court on or before the anniversary date of the issuance of the guardian's permanent letters. 3. If the guardian is unable to file an annual report of guardian within the time set forth in this rule, the guardian shall, before the deadline, file a motion that requests additional time to file the report. The motion shall state why additional time is required and how much additional time is required to file the report. 4. For purposes of this rule, if the guardian's appointment initially was temporary, “the date the guardian's letters were first issued” shall mean the date the guardian's temporary letters were issued; otherwise, “the date the guardian's letters were first issued” shall mean the date the guardian's permanent letters were issued. OR *VERSION 1-TRIAGE PROGRAM A D. INDEPENDENT CASE REVIEW 1. DURING A PRE-APPOINTMENT INVESTIGATION OF A SUBJECT PERSON PURSUANT TO A.R.S. § 14-5308(B), AN INVESTIGATOR SHALL ASSESS THE NEED FOR POST-APPOINTMENT MONITORING THROUGH USE OF RISK ASSESSMENT CRITERIA ESTABLISHED BY THE SUPREME COURT AND SET FORTH IN A FORM. THE INVESTIGATOR SHALL FILE THE RISK ASSESSMENT FORM WITH THE COURT UPON COMPLETION OF THE INVESTIGATION. 2. UPON APPOINTMENT OF A GUARDIAN OR CONSERVATOR FOR AN ADULT, THE SUPERIOR COURT SHALL CONSIDER THE RISK ASSESSMENT INFORMATION PROVIDED BY THE INVESTIGATOR AND ORDER ONE OR MORE METHODS OF CASE REVIEW. SUCH METHODS MUST INCLUDE VISITATION OF THE SUBJECT PERSON AND MAY INCLUDE FINANCIAL REVIEW. THE COURT MUST ORDER SOME TYPE OF CASE REVIEW AT LEAST BIENIALLY. Page 307 of 432 3. THE COURT MAY USE VOLUNTEERS TO VISIT ADULT WARDS AND PROTECTED PERSONS. ANY VOLUNTEER MUST SUBMIT TO A CRIMINAL BACKGROUND CHECK AND UNDERGO TRAINING AS REQUIRED BY THE SUPREME COURT. 4. IN DETERMINING WHETHER THE SUBJECT PERSON IS IN NEED OF A GUARDIANSHIP OR CONSERVATORSHIP, THE COURT SHALL NOT CONSIDER THE RISK ASSESSMENT FORM COMPLETED PURSUANT TO THIS RULE, NOR SHALL THE RISK ASSESSMENT FORM BE ADMISSIBLE IN EVIDENCE DURING ANY HEARING ON WHETHER A GUARDIAN OR CONSERVATOR SHOULD BE APPOINTED FOR THE SUBJECT PERSON. OR *VERSION 2-TRIAGE PROGRAM B D. INDEPENDENT CASE REVIEW 1. DURING A PRE-APPOINTMENT INVESTIGATION OF A SUBJECT PERSON PURSUANT TO A.R.S. § 14-5308(B), AN INVESTIGATOR SHALL ASSESS THE NEED FOR POST-APPOINTMENT MONITORING THROUGH USE OF RISK ASSESSMENT CRITERIA ESTABLISHED BY THE SUPREME COURT AND SET FORTH IN A FORM. THE INVESTIGATOR SHALL FILE THE RISK ASSESSMENT FORM WITH THE COURT UPON COMPLETION OF THE INVESTIGATION. 2. UPON APPOINTMENT OF A GUARDIAN OR CONSERVATOR FOR AN ADULT, THE COURT SHALL CONSIDER THE RISK ASSESSMENT INFORMATION PROVIDED BY THE INVESTIGATOR. AT THE COURT’S DISCRETION, IT MAY ORDER ONE OR MORE METHODS OF CASE REVIEW. SUCH METHODS MAY INCLUDE VISITATION OF THE SUBJECT PERSON AND FINANCIAL REVIEW. 3. THE COURT MAY USE VOLUNTEERS TO VISIT ADULT WARDS AND PROTECTED PERSONS. ANY VOLUNTEER MUST SUBMIT TO A CRIMINAL BACKGROUND CHECK AND UNDERGO TRAINING AS REQUIRED BY THE COURT. 4. IN DETERMINING WHETHER THE SUBJECT PERSON IS IN NEED OF A GUARDIANSHIP OR CONSERVATORSHIP, THE COURT SHALL NOT CONSIDER THE RISK ASSESSMENT FORM COMPLETED PURSUANT TO THIS RULE, NOR SHALL THE RISK ASSESSMENT FORM BE ADMISSIBLE IN EVIDENCE DURING ANY HEARING ON WHETHER A GUARDIAN OR CONSERVATOR SHOULD BE APPOINTED FOR THE SUBJECT PERSON. Page 308 of 432 RULE 30.1: GOOD FAITH ESTIMATE A. PETITION TO APPOINT A CONSERVATOR SHALL BE ACCOMPANIED BY A GOOD FAITH ESTIMATE OF ALL PROJECTED MONTHLY AND ANNUAL COSTS THAT SHALL BE INCURRED BY A CONSERVATOR, EXCEPT MEDICAL COSTS, TO THE EXTENT THE INFORMATION CAN BE REASONABLY KNOWN OR PROJECTED AT THE TIME A PETITION IS FILED. B. THE GOOD FAITH ESTIMATE SHALL BE MADE IN FORM 5 SET FORTH IN RULE 38 (FORMS) AND SHALL CONFORM TO THE INSTRUCTIONS PROVIDED WITH FORM 5. C. IF THE PETITIONER IS UNABLE TO PROVIDE ALL OR PART OF THE GOOD FAITH ESTIMATE AT THE TIME THE PETITION IS FILED, THE PETITIONER MUST STATE IN THE PETITION ALL EFFORTS MADE BY THE PETITIONER TO OBTAIN THE ESTIMATES, AND THE PETITIONER SHALL UPDATE THE GOOD FAITH ESTIMATE FIVE DAYS BEFORE THE HEARING ON THE PETITION IF FURTHER INFORMATION BECOMES KNOWN. RULE 30.2: FINANCIAL ORDER A. FOLLOWING THE APPOINTMENT OF A CONSERVATOR, A CONSERVATOR FOR AN ADULT SHALL INSTITUTE AND FOLLOW A BUDGET, AS SET FORTH IN RULE 30.4, UNLESS OTHERWISE ORDERED BY THE COURT, AND THE COURT MAY ENTER ONE OR MORE OF THE FOLLOWING ORDERS: 1. LIMIT EXPENDITURES FROM THE ESTATE OF THE PROTECTED PERSON AS THE COURT FINDS IS IN THE PROTECTED PERSON’S BEST INTEREST; OR, 2. REQUIRE THE CONSERVATOR TO PROCEED IN ANY OTHER LAWFUL MANNER THE COURT FINDS IS IN THE PROTECTED PERSON'S BEST INTEREST. B. AFTER A CONSERVATOR IS APPOINTED, THE COURT MAY DISCHARGE THE PROTECTED PERSON'S ATTORNEY IF THE COURT FINDS THAT THE COST OF THE CONTINUED REPRESENTATION EXCEEDS THE PROBABLE BENEFIT TO THE PROTECTED PERSON. UNTIL DISCHARGED, THE PROTECTED PERSON'S ATTORNEY HAS A CONTINUING DUTY TO REVIEW THE CONSERVATOR'S INVENTORY, BUDGETS AND ACCOUNTS AND TO NOTIFY THE COURT OF ANY OBJECTIONS OR CONCERNS THE ATTORNEY IDENTIFIES WITH RESPECT TO THE CONSERVATOR'S INVENTORY, BUDGETS AND ACCOUNTS. Page 309 of 432 COMMENT A.R.S. § 14-5408(A)(3) AUTHORIZES THE COURT, AFTER IT DETERMINES THAT A BASIS FOR THE APPOINTMENT OF A CONSERVATOR EXISTS WITH RESPECT TO A PERSON FOR REASONS OTHER THAN MINORITY, TO ENTER SUCH ORDERS AS ARE NECESSARY FOR THE BENEFIT OF THE PROTECTED PERSON AND MEMBERS OF THAT PERSON’S HOUSEHOLD. A.R.S. § 14-5426(A) AUTHORIZES THE COURT TO LIMIT THE POWERS OF A CONSERVATOR. CONSISTENT WITH THOSE STATUTES, THIS RULE IS INTENDED TO ENSURE THAT THE PROTECTED PERSON’S ESTATE IS PROPERLY MANAGED, PROTECTED, AND PRESERVED. RULE 30.3: SUSTAINABILITY OF CONSERVATORSHIP A. THE CONSERVATOR SHALL DISCLOSE WHETHER THE ANNUAL EXPENSES OF THE CONSERVATORSHIP EXCEED INCOME AND, IF SO, WHETHER THE ASSETS AVAILABLE TO THE CONSERVATOR LESS LIABILITIES ARE SUFFICIENT TO SUSTAIN THE CONSERVATORSHIP DURING THE PROJECTED LIFESPAN OF THE PROTECTED PERSON. IF THE ASSETS ARE NOT SUFFICIENT, THE CONSERVATOR SHALL ALSO DISCLOSE THE MANAGEMENT PLAN FOR THE NON-SUSTAINABLE CONSERVATORSHIP. UNLESS OTHERWISE ORDERED BY THE COURT, THE CONSERVATOR SHALL DISCLOSE THE INFORMATION REQUIRED BY THIS RULE, INCLUDING THE CONSERVATOR’S ASSUMPTIONS AND CALCULATION, WHEN FILING AN INVENTORY, ANY CONSERVATOR’S ACCOUNT, AND FOLLOWING ANY MATERIAL CHANGE OF CIRCUMSTANCES. B. THE INFORMATION REQUIRED BY THIS RULE SHALL BE A GOOD FAITH PROJECTION BASED UPON THE INFORMATION THAT IS REASONABLY AVAILABLE TO THE CONSERVATOR CONCERNING THE SUBJECT PERSON. THIS INFORMATION MAY BE CONSIDERED BY THE COURT WHEN ENTERING ORDERS. C. THE CONSERVATORSHIP IS DEEMED SUSTAINABLE IF THE FOLLOWING EQUATION IS PROJECTED TO BE TRUE: (AVAILABLE ASSETS MINUS LIABILITIES OF THE ESTATE) ≥ PROJECTED LIFESPAN (ANNUAL EXPENDITURES MINUS ANNUAL INCOME) D. THE DISCLOSURE REQUIRED BY THIS RULE IS NOT REQUIRED IN THE CONSERVATORSHIP FOR A MINOR UNLESS OTHERWISE ORDERED BY THE COURT. Page 310 of 432 E. UNLESS OTHERWISE ORDERED BY THE COURT, THE SUSTAINABILITY DISCLOSURE SHALL BE FILED IN THE FORMAT SET FORTH IN THE APPROPRIATE FORM CONTAINED IN RULE 38 OF THESE RULES. COMMENT THE PURPOSE OF THE DISCLOSURE REQUIRED BY THIS RULE IS TO PROVIDE THE COURT AND PARTIES WITH A GENERAL IDEA AS TO WHETHER THE ASSETS AND INCOME OF THE CONSERVATORSHIP ESTATE ARE SUFFICIENT TO PAY FOR THE PROTECTED PERSON’S EXPENSES DURING THAT PERSON’S PROJECTED LIFE EXPECTANCY. THUS, THE DISCLOSURE REQUIRED BY THIS RULE IS INTENDED TO SERVE SOLELY AS A MANAGEMENT TOOL; THE COURT DOES NOT INTEND THAT A GOOD FAITH PROJECTION WILL FORM THE BASIS FOR A CLAIM OF LIABILITY AGAINST THE CONSERVATOR. THE FOLLOWING EXAMPLE DESCRIBES HOW THE REQUIRED DISCLOSURE IS CALCULATED: ASSUME A PROTECTED PERSON’S ESTATE CONSISTS OF $20,000 IN BANK ACCOUNTS AND A RESIDENCE WITH A FAIR MARKET VALUE OF $120,000 AND A $65,000 MORTGAGE. FURTHER ASSUME THAT SAME PROTECTED PERSON HAS AN ANNUAL INCOME OF $20,000 AND ANNUAL EXPENSES (INCLUDING FIDUCIARY AND ATTORNEY FEES) OF $45,000. THE CONSERVATORSHIP’S SUSTAINABILITY IS CALCULATED AS FOLLOWS: ($120,000 + 20,000 − 65,000) ≥ PROJECTED LIFESPAN ($45,000 − 20,000)) $75,000 ≥ PROJECTED LIFESPAN $25,000 3 YEARS UNTIL ASSETS ARE DEPLETED ≥ PROJECTED LIFESPAN THUS, IF THE CONSERVATOR ESTIMATES THAT THE PROTECTED PERSON’S LIFESPAN IS THREE YEARS OR LESS, THE CONSERVATORSHIP IS SUSTAINABLE. ON THE OTHER HAND, IF THE CONSERVATOR ESTIMATES THAT THE PROTECTED PERSON’S LIFESPAN IS MORE THAN THREE YEARS, THE CONSERVATORSHIP IS NOT SUSTAINABLE AND THE CONSERVATOR MUST EXPLAIN HOW THE PROTECTED PERSON’S EXPENSES WILL BE MANAGED AFTER THREE YEARS. Page 311 of 432 RULE 30.4: CONSERVATORSHIP ESTATE BUDGET A. UNLESS OTHERWISE ORDERED BY THE COURT, THE CONSERVATOR SHALL FILE A BUDGET NOT LATER THAN THE DATE THE INVENTORY IS DUE AND WITH THE CONSERVATOR’S ACCOUNT FILED THEREAFTER, FOLLOWING CONSULTATION WITH ANY ATTORNEY OR GUARDIAN AD LITEM FOR THE PROTECTED PERSON. THE FIRST BUDGET SHALL COVER THE DATE OF THE CONSERVATOR'S INITIAL APPOINTMENT THROUGH AND INCLUDING THE END DATE OF THE CONSERVATOR'S FIRST ACCOUNT. B. UNLESS OTHERWISE ORDERED BY THE COURT, THE BUDGET SHALL BE FILED IN THE FORMAT SET FORTH IN THE APPROPRIATE FORM CONTAINED IN RULE 38 OF THESE RULES. C. THE CONSERVATOR MUST PROVIDE A COPY OF THE BUDGET TO ALL PERSONS ENTITLED TO NOTICE OF THE CONSERVATOR'S ACCOUNTS PURSUANT TO ARIZONA REVISED STATUTES SECTION 14-5419(C). D. THE CONSERVATOR SHALL FILE AN AMENDMENT TO THE BUDGET AND PROVIDE NOTICE IN THE SAME MANNER AS THE INITIAL BUDGET WITHIN THIRTY DAYS AFTER REASONABLY PROJECTING THAT THE EXPENDITURES FOR ANY SPECIFIC CATEGORY WILL EXCEED THE APPROVED BUDGET BY MORE THAN TEN PER CENT OR TWO THOUSAND DOLLARS, WHICHEVER IS GREATER, UNLESS A DIFFERENT THRESHOLD FOR AMENDMENT IS PRESCRIBED BY THE COURT. E. AN INTERESTED PERSON MAY FILE A WRITTEN OBJECTION TO THE BUDGET OR AMENDMENT WITHIN FOURTEEN DAYS AFTER THE FILING DATE OF THE BUDGET OR AMENDMENT. ON THE FILING OF A WRITTEN OBJECTION, THE COURT MAY OVERRULE ALL OR PART OF THE OBJECTION, ORDER A REPLY BY THE CONSERVATOR OR SET A HEARING ON THE OBJECTION. THE COURT MAY ALSO SET A HEARING IN THE ABSENCE OF AN OBJECTION. AT A HEARING, THE CONSERVATOR HAS THE BURDEN TO PROVE THAT A CONTESTED BUDGET ITEM IS REASONABLE, NECESSARY AND IN THE BEST INTEREST OF THE PROTECTED PERSON. IF AN INTERESTED PERSON FAILS TO OBJECT TO A BUDGET ITEM WITHIN FOURTEEN DAYS AFTER THE FILING DATE OF THE BUDGET OR AMENDMENT, HOWEVER, THE BUDGET ITEM SHALL BE DEEMED PRESUMPTIVELY REASONABLE AT THE TIME OF THE CONSERVATOR’S ACCOUNT. F. THE COURT MAY ORDER THAT A BUDGET IS ACCEPTED IN THE ABSENCE OF AN OBJECTION. ON THE COURT’S OWN MOTION OR UPON THE FILING OF A Page 312 of 432 WRITTEN OBJECTION, THE COURT SHALL APPROVE, DISAPPROVE OR MODIFY THE BUDGET TO FURTHER THE PROTECCTED PERSON’S BEST INTEREST. Rule 33. Compensation for Fiduciaries and Attorney's Fees Attorneys; STATEWIDE FEE GUIDELINES A. A GUARDIAN, CONSERVATOR, ATTORNEY OR GUARDIAN AD LITEM WHO INTENDS TO BE COMPENSATED BY THE ESTATE OF A WARD OR PROTECTED PERSON SHALL GIVE WRITTEN NOTICE OF THE BASIS OF ANY COMPENSATION AS REQUIRED BY ARIZONA REVISED STATUTES SECTION 14-5109. B.A. Unless otherwise ordered by the court, a petition that requests approval of compensation for a personal representative, trustee, guardian, conservator, guardian ad litem, attorney representing such fiduciary, or an attorney representing the subject person in a guardianship or conservatorship proceeding for services rendered in proceedings under A.R.S. Title 14 shall be accompanied by a statement that includes the following information: 1. If compensation is requested based on hourly rates, a detailed statement of the services provided, including the tasks performed, the date each task was performed, the time expended in performing each task, the name and position of the person who performed each task, and the hourly rate charged for such services; 2. An itemization of costs for which reimbursement is sought that identifies the cost item, the date the cost was incurred, the purpose for which the expenditure was made, and the amount of reimbursement requested, or, if reimbursement of costs is based on some other method, an explanation of the method being used for reimbursement of costs; and 3. If compensation is not based on hourly rates, an explanation of the fee arrangement and computation of the fee for which approval is sought. C.B. Copies of all petitions for compensation and fee statements shall be provided to or served on each party and person who has appeared or requested notice in the case. Proof of such service shall be filed with the court. D.C. If a petition for compensation or fees is contested, the objecting party shall set forth all specific objections in writing, and a copy of such written objections shall be given to or served on each party and person who has appeared or requested notice in the case. Proof of service or delivery of such notice shall be filed with the court. Page 313 of 432 E.D. When an attorney or fiduciary fee statement accompanies an annual accounting, the fee statement shall match the charges reported in the annual accounting or a reconciliation of the fee statement to the accounting shall be provided by the fiduciary F.E. WHEN DETERMINING REASONABLE COMPENSATION, Tthe superior court SHALL FOLLOW THE STATEWIDE FEE GUIDELINES SET FORTH IN APPENDIX B TO THESE RULES may adopt fee guidelines designating compensation rates that may be used in determining the reasonableness of fees payable to licensed fiduciaries in cases under A.R.S. Title 14. G.F. Unless ordered by the court, neither a personal representative nor a personal representative's attorney is required to file a petition for approval of such person's fees. H. COMPENSATION PAYABLE TO ATTORNEYS OR GUARDIANS AD LITEM FROM THE ESTATE OF A WARD OR PROTECTED PERSON IS WAIVED IF NOT SUBMITTED IN COMPLIANCE WITH ARIZONA REVISED STATUTES, SECTION 14-5110. Rule 38. Appendix to Forms A. The forms Forms 1 THROUGH 4 included in Appendix A are the preferred forms and meet the requirements of these rules. Whenever these rules require the use of a form that is “substantially similar” to a form contained in this rule, such language means that the content of these forms may be adapted to delete information that does not apply to a particular case or add other relevant information, provided that all information contained in the preferred form and applicable to the case is included. The deletion of information contained in the preferred form or the failure to complete a portion of the preferred form constitutes a representation to the court and adverse parties that the omitted or unanswered questions or items are not applicable. Any form may be modified for submission at times and under circumstances provided for by an Administrative Order of the Supreme Court of Arizona. B. The forms Forms 1 THROUGH 4 in Appendix A shall not be the exclusive method for presenting such matters in the superior court. B. FORMS 5 THROUGH 10 INCLUDED IN APPENDIX A MEET THE REQUIREMENTS OF THESE RULES. UNLESS OTHERWISE ORDERED BY THE COURT, FORMS 5 THROUGH 9 SHALL BE THE EXCLUSIVE METHOD FOR PRESENTING SUCH MATTERS IN THE SUPERIOR COURT. FORM 10 CAN BE USED BY A CONSERVATOR ONLY IF AUTHORIZED BY THE COURT TO DO SO. THE INSTRUCTIONS INCLUDED WITH FORMS 5 THROUGH 10 SUPPLEMENT THE RULES AND HAVE THE SAME FORCE AND EFFECT AS THE RULES. Page 314 of 432 COMMENT The f Forms 1 THROUGH 4 contained in Appendix A are sufficient under the rules and are intended to indicate the simplicity and brevity of statement that these rules contemplate. Although use of these forms is encouraged, the forms are not the exclusive means for addressing the court in writing. FORMS 5 THROUGH 10, HOWEVER, MUST BE USED IN THEIR EXACT FORM AS THEY ARE THE EXCLUSIVE MEANS FOR ADDRESSING THE COURT IN WRITING. FORM 10 IS A SIMPLIFIED FORM THAT CAN ONLY BE USED BY THE CONSERVATOR IF THE COURT SO AUTHORIZES. THE REQUIREMENT OF USING THESE FORMS IS IMPOSED IN AN EFFORT TO INCREASE JUDICIAL OVERSIGHT OF CONSERVATORSHIPS. THESE FORMS WILL BRING UNIFORMITY AND COMPARABILITY TO JUDICIAL OVERSIGHT OF CONSERVATORSHIPS. Page 315 of 432 Proposed Amendments to the Arizona Rules of the Supreme Court OPTION 1: Rule 31. Regulation of the Practice of Law (a) Supreme Court Jurisdiction Over the Practice of Law. .... (b) Authority to Practice. Except as hereinafter provided in section (d), no person shall practice law in this state or represent in any way that he or she may practice law in this state unless the person is an active member of the state bar. .... (d) Exemptions. Notwithstanding the provisions of section (b), but subject to the limitations of section (c) unless otherwise stated: .... 30. AN OFFICER, MEMBER, OR EMPLOYEE OF A CORPORATION, LIMITED LIABILITY COMPANY, PUBLIC FIDUCIARY, OR THE ARIZONA DEPARTMENT OF VETERANS SERVICES THAT IS LICENSED AS A FIDUCIARY PURSUANT TO A.R.S. §14-5651, WHO IS NOT AN ACTIVE MEMBER OF THE STATE BAR MAY REPRESENT SUCH ENTITY BEFORE THE SUPERIOR COURT IN PROBATE PROCEEDINGS IF THE ENTITY IS NOT REPRESENTED BY COUNSEL OR TO THE EXTENT PERMITTED BY RULE 10.1, ARIZONA RULES OF PROBATE PROCEDURE, IF ALL THE FOLLOWING CONDITIONS ARE SATISFIED: (A) THE ENTITY AUTHORIZES THE OFFICER, MEMBER, OR EMPLOYEE TO REPRESENT IT IN THE PROCEEDINGS; (B) SUCH REPRESENTATION IS NOT THE OFFICER'S, MEMBER’S, OR EMPLOYEE'S PRIMARY DUTY TO THE ENTITY BUT SECONDARY OR INCIDENTAL TO OTHER DUTIES RELATED TO THE MANAGEMENT OR OPERATION OF THE ENTITY; AND (C) THE OFFICER, MEMBER, OR EMPLOYEE IS NOT RECEIVING SEPARATE OR ADDITIONAL COMPENSATION (OTHER THAN REIMBURSEMENT FOR COSTS) FOR SUCH REPRESENTATION; AND, SUCH OFFICER, MEMBER OR EMPLOYEE IS INDIVIDUALLY LICENSED AS A FIDUCIARY PURSUANT TO A.R.S. §14-5651. NOTWITHSTANDING THE FOREGOING PROVISION, THE COURT MAY REQUIRE REPRESENTATION BY AN ATTORNEY WHENEVER IT DETERMINES THAT LAY REPRESENTATION IS INTERFERING WITH THE ORDERLY PROGRESS OF THE PROCEEDINGS OR IMPOSING UNDUE BURDENS ON OTHER PARTIES. IN ADDITION, Page 316 of 432 THE COURT MAY ASSESS AN APPROPRIATE SANCTION AGAINST ANY PARTY OR ATTORNEY WHO HAS ENGAGED IN UNREASONABLE, GROUNDLESS, ABUSIVE OR OBSTRUCTIONIST CONDUCT. 31. NOTHING IN THESE RULES SHALL PROHIBIT A PERSON LICENSED AS A FIDUCIARY PURSUANT TO A.R.S. § 14-5651 AND PERFORMING SERVICES IN COMPLIANCE WITH RULE 10.1, ARIZONA RULES OF PROBATE PROCEDURE, AND ARIZONA CODE OF JUDICIAL ADMINISTRATION, PART 7, CHAPTER 2, SECTION 7202. THIS EXEMPTION IS NOT SUBJECT TO PARAGRAPH (C) OF THIS RULE AS LONG AS THE DISBARRED ATTORNEY OR MEMBER HAS BEEN LICENSED AS A FIDUCIARY PURSUANT TO A.R.S. § 14-5651 AND THE ARIZONA CODE OF JUDICIAL ADMINISTRATION, PART 7, CHAPTER 2, SECTION 7-202. OPTION 2: Rule 31. Regulation of the Practice of Law (a) Supreme Court Jurisdiction Over the Practice of Law. .... (b) Authority to Practice. Except as hereinafter provided in section (d), no person shall practice law in this state or represent in any way that he or she may practice law in this state unless the person is an active member of the state bar. .... (d) Exemptions. Notwithstanding the provisions of section (b), but subject to the limitations of section (c) unless otherwise stated: .... 30. NOTHIING IN THESE RULES SHALL PROHIBIT A PERSON LICENSED AS A FIDUCIARY PURSUANT TO A.R.S. § 14-5651 AND PERFORMING SERVICES IN COMPLIANCE WITH RULE 10.1, ARIZONA RULES OF PROBATE PROCEDURE AND ARIZONA CODE OF JUDICIAL ADMINISTRATION, PART 7, CHAPTER 2, SECTION 7202. THIS EXEMPTION IS NOT SUBJECT TO PARAGRAPH (C) OF THIS RULE AS LONG AS THE DISBARRED ATTORNEY OR MEMBER HAS BEEN LICENSED AS A FIDUCIARY PURSUANT TO A.R.S. § 14-5651 AND THE ARIZONA CODE OF JUDICIAL ADMINISTRATION, PART 7, CHAPTER 2, SECTION 7-202. NOTWITHSTANDING THE FOREGOING PROVISION, THE COURT MAY REQUIRE REPRESENTATION BY AN ATTORNEY WHENEVER IT DETERMINES THAT LAY REPRESENTATION IS INTERFERING WITH THE ORDERLY PROGRESS OF THE PROCEEDINGS OR Page 317 of 432 IMPOSING UNDUE BURDENS ON OTHER PARTIES. IN ADDITION, THE COURT MAY ASSESS AN APPROPRIATE SANCTION AGAINST ANY PARTY OR ATTORNEY WHO HAS ENGAGED IN UNREASONABLE, GROUNDLESS, ABUSIVE OR OBSTRUCTIONIST CONDUCT. Page 318 of 432 Proposed Amendments to the Arizona Code of Judicial Administration OPTION 1: Arizona Code of Judicial Administration Section 7-202: Fiduciaries .... J. Code of Conduct. . . . 1. [unchanged] 2. Ethics. The fiduciary shall exhibit the highest degree of trust, loyalty and fidelity in relation to the ward, protected person, or estate. a. – f. [unchanged] g. The fiduciary shall only prepare powers of attorney or other legal document, if also certified as a legal document preparer pursuant to ACJA § 7-208, except PERMITTED BY RULE 10.1, ARIZONA RULES OF PROBATE PROCEDURE, OR as ordered by the court. This provision does not apply to the Arizona Department of Veterans Services pursuant to A.R.S. § 41-603(A). OPTION 2: Arizona Code of Judicial Administration Section 7-202: Fiduciaries F. Role and Responsibilities of Fiduciaries. In addition to the requirements of ACJA § 7201(F), the following requirements apply: 1. – 9. [unchanged] 10. A LICENSED FIDUCIARY IS AUTHORIZED TO: A. PREPARE LEGAL DOCUMENTS WITHOUT THE SUPERVISION OF AN ATTORNEY, AS AUTHORIZED BY RULE 10.1, ARIZONA RULES OF PROBATE PROCEDURE, OR Page 319 of 432 B. REPRESENT THE LICENSED FIDUCIARY BUSINESS, OFFICE OF THE PUBLIC FIDUCIARY OR THE ARIZONA DEPARTMENT OF VETERANS’ SERVICES BEFORE THE SUPERIOR COURT IN PROBATE PROCEEDINGS IF THE BUSINESS, OFFICE OR DEPARTMENT IS NOT REPRESENTED BY COUNSEL OR TO THE EXTENT PERMITTED BY RULE 10.1, ARIZONA RULES OF PROBATE PROCEDURE, IF ALL THE FOLLOWING CONDITIONS ARE SATISFIED: 1. THE ENTITY AUTHORIZES THE LICENSED FIDUCIARY TO REPRESENT IT IN THE PROCEEDINGS; 2. THE FIDUCIARY IS NOT RECEIVING SEPARATE OR ADDITIONAL COMPENSATION (OTHER THAN REIMBURSEMENT FOR COSTS) FOR SUCH REPRESENTATION;SUCH REPRESENTATION IS NOT THE OFFICER'S, MEMBER’S, OR EMPLOYEE'S PRIMARY DUTY TO THE ENTITY BUT SECONDARY OR INCIDENTAL TO OTHER DUTIES RELATED TO THE MANAGEMENT OR OPERATION OF THE ENTITY. J. Code of Conduct. . . . . 1. [unchanged] 2. Ethics. The fiduciary shall exhibit the highest degree of trust, loyalty and fidelity in relation to the ward, protected person, or estate. a. – f. [unchanged] g. The fiduciary shall only prepare powers of attorney or other legal documents, if also certified as a legal document preparer pursuant to ACJA § 7-208, except PERMITTED BY RULE 10.1, ARIZONA RULES OF PROBATE PROCEDURE, OR as ordered by the court. This provision does not apply to the Arizona Department of Veterans Services pursuant to A.R.S. § 41-603(A). Page 320 of 432 Proposed Statewide Fee Guidelines STATEWIDE FEE GUIDELINES FOR ASSESSING THE REASONABLENESS OF FIDUCIARY, GUARDIAN AD LITEM, AND ATTORNEY COMPENSATION IN TITLE 14 PROCEEDINGS INTRODUCTION: THESE GUIDELINES ARE INTENDED TO ASSIST THE COURT, FIDUCIARIES, GUARDIANS AD LITEM, ATTORNEYS, PARTIES, AND INTERESTED PERSONS IN EVALUATING WHETHER COMPENSATION IS REASONABLE, SINCE PROFESSIONAL SERVICES MUST BE TAILORED TO THE SPECIFIC CIRCUMSTANCES OF EACH ENGAGEMENT, AND A ONE-SIZE-FITS-ALL REGULATORY APPROACH TO PROFESSIONAL SERVICES AND COMPENSATION IS NOT PRACTICAL AND NOT IN THE BEST INTEREST OF EACH UNIQUE WARD, PROTECTED PERSON, ESTATE, AND TRUST. ALTHOUGH SUCH REGULATORY APPROACHES HAVE THE ATTRACTION OF APPARENT SIMPLICITY, THE RESULT CAN BE INCREASED ADMINISTRATIVE COSTS, DIMINISHED QUALITY OF PROFESSIONAL SERVICES, OR UNDERSERVED POPULATIONS, SUCH THAT REASONABLE COMPENSATION IS BEST DETERMINED ON A CASE-BY-CASE BASIS, WHILE APPLYING CONSISTENT COMPENSATION GUIDELINES. SINCE EVERY CASE IS DIFFERENT, HOWEVER, AND BECAUSE EVERY FIDUCIARY, GUARDIAN AD LITEM, AND ATTORNEY HAS UNIQUE QUALIFICATIONS, THESE FEE GUIDELINES SET FORTH COMPULSORY BILLING STANDARDS, POINTS OF REFERENCE, AND GENERAL COMPENSATION FACTORS, BUT NOT PREDETERMINED TIMES TO PERFORM SPECIFIC TASKS, PREDETERMINED RATE SCHEDULES, OR FEES AS A PERCENT OF AN ESTATE. THEREFORE, FOLLOWING COMPLIANCE WITH COMPULSORY BILLING STANDARDS, THE COURT SHALL WEIGH THE TOTALITY OF THE CIRCUMSTANCES AND, IN ITS DISCRETION, ASSIGN MORE OR LESS WEIGHT TO ANY GIVEN POINTS OF REFERENCE OR COMPENSATION FACTORS AS IT DEEMS JUST AND REASONABLE. SCOPE: Page 321 of 432 THESE GUIDELINES ONLY APPLY TO THE COMPENSATION OF COURTAPPOINTED FIDUCIARIES, SPECIFICALLY GUARDIANS, CONSERVATORS, AND PERSONAL REPRESENTATIVES, LICENSED AND UNLICENSED, AS WELL AS GUARDIANS AD LITEM AND ATTORNEYS WHO ARE PAID BY A WARD, PROTECTED PERSON, ESTATE, OR TRUST (COLLECTIVELY REFERRED TO IN THE GUIDELINES AS AN “ESTATE”), BUT SHALL NOT APPLY TO COMPENSATION PAID BY A TRUST OR DECEDENT’S ESTATE, IF COMPENSATION IS SPECIFIED OR SET FORTH IN THE RELEVANT TRUST OR TESTAMENTARY INSTRUMENT. THESE FEE GUIDELINES DO NOT APPLY WHEN THE FEES ARE NOT PAID BY THE ESTATE, SUCH AS COURTAPPOINTED COUNSEL WHO ARE PAID BY THE COURT. GUIDELINES: 6. REASONABLE COMPENSATION. FIDUCIARIES, GUARDIANS AD LITEM, AND ATTORNEYS (COLLECTIVELY REFERRED TO IN THE GUIDELINES AS A “PROFESSIONAL”) ARE ENTITLED TO REASONABLE COMPENSATION FOR THE SERVICES THEY RENDER IN FURTHERANCE OF THE BEST INTEREST OF THE ESTATE, WHICH RESULTS IN COMPENSATION THAT IS FAIR, PROPER, JUST, MODERATE, SUITABLE UNDER THE CIRCUMSTANCES, FIT, APPROPRIATE TO THE END IN VIEW, AND TIMELY PAID, CONSISTENT WITH THE FOLLOWING GUIDELINES. THE RIGHT TO RECEIVE COMPENSATION MAY BE LIMITED BY APPLICABLE STATUTES. 7. COMPULSORY BILLING STANDARDS. UNLESS OTHERWISE ORDERED BY THE COURT, COMPENSATION AND REIMBURSEMENT SHALL MEET THE FOLLOWING STANDARDS: N. ALL FEE PETITIONS SHALL COMPLY WITH RULE 33 OF THE ARIZONA RULES OF PROBATE PROCEDURE. O. ALL HOURLY BILLING SHALL BE IN AN INCREMENT TO THE NEAREST 1/10 OF AN HOUR, WITH NO MINIMUM BILLING UNIT IN EXCESS OF 1/10 OF AN HOUR. NO “VALUE BILLING” FOR SERVICES RENDERED IS PERMITTED, RATHER THAN THE ACTUAL TIME EXPENDED. P. “BLOCK BILLING” IS NOT PERMITTED; BLOCK BILLING OCCURS WHEN A TIMEKEEPER PROVIDES ONLY A TOTAL AMOUNT OF TIME SPENT WORKING ON MULTIPLE TASKS, RATHER THAN AN ITEMIZATION OF THE TIME EXPENDED ON A SPECIFIC TASK. Q. NECESSARY TRAVEL TIME AND WAITING TIME MAY BE BILLED AT 100% OF THE NORMAL HOURLY RATE, EXCEPT FOR TIME SPENT ON OTHER BILLABLE ACTIVITY, AND IN-STATE MILEAGE IS NOT REIMBURSED; TRAVEL TIME AND WAITING TIME ARE NOT NECESSARY WHEN THE SERVICE CAN BE MORE EFFICIENTLY RENDERED BY CORRESPONDENCE OR ELECTRONIC COMMUNICATION, E.G. TELEPHONIC COURT HEARINGS. Page 322 of 432 R. BILLABLE TIME THAT BENEFITS MULTIPLE CLIENTS, INCLUDING TRAVEL AND WAITING TIME, SHALL BE APPROPRIATELY APPORTIONED BETWEEN EACH CLIENT. S. BILLABLE TIME DOES NOT INCLUDE TIME SPENT ON BILLING OR ACCOUNTS RECEIVABLE ACTIVITIES, INCLUDING TIME SPENT PREPARING ITEMIZED STATEMENTS OF WORK PERFORMED, COPYING, OR DISTRIBUTING STATEMENTS; HOWEVER, TIME SPENT DRAFTING THE ADDITIONAL DOCUMENTS THAT ARE REQUIRED BY COURT ORDER, RULE, OR STATUTE, INCLUDING ANY RELATED HEARING, IS BILLABLE TIME. THE COURT SHALL DETERMINE THE REASONABLE COMPENSATION, IF ANY, IN ITS SOLE DISCRETION, CONCERNING ANY CONTESTED LITIGATION OVER FEES OR COSTS. T. BILLABLE TIME DOES NOT INCLUDE INTERNAL BUSINESS ACTIVITIES OF THE PROFESSIONAL, INCLUDING CLERICAL OR SECRETARIAL SUPPORT TO THE PROFESSIONAL. U. THE HOURLY RATE CHARGED FOR ANY GIVEN TASK SHALL BE AT THE AUTHORIZED RATE, COMMENSURATE WITH THE TASK PERFORMED, REGARDLESS OF WHO ACTUALLY PERFORMED THE WORK, BUT CLERICAL AND SECRETARIAL ACTIVITIES ARE NOT SEPARATELY BILLABLE FROM THE PROFESSIONAL. EXAMPLE: AN ATTORNEY CAN ONLY BILL AN ATTORNEY RATE WHEN PERFORMING SERVICES THAT REQUIRE AN ATTORNEY, BUT A PARALEGAL RATE WHEN PERFORMING PARALEGAL SERVICES, A FIDUCIARY RATE WHEN PERFORMING FIDUCIARY SERVICES, NO CHARGE WHEN PERFORMING SECRETARIAL OR CLERICAL SERVICES, ETC. EXAMPLE: A FIDUCIARY CAN ONLY BILL A FIDUCIARY RATE WHEN PERFORMING SERVICES THAT REQUIRE THE SKILL LEVEL OF THE FIDUCIARY, BUT A COMPANION RATE WHEN PERFORMING COMPANION SERVICES, A BOOKKEEPER RATE WHEN PERFORMING BOOKKEEPING AND BILL-PAYING SERVICES FOR A CLIENT, NO CHARGE WHEN PERFORMING SECRETARIAL OR CLERICAL SERVICES, ETC. V. REASONABLE COSTS THAT ARE INCURRED IN FURTHERANCE OF THE BEST INTEREST OF THE ESTATE ARE REIMBURSABLE AT ACTUAL COST, WITHOUT “MARK-UP”. EXAMPLES OF REIMBURSABLE COSTS INCLUDE, BUT ARE NOT LIMITED TO: GOODS OR SERVICES OBTAINED FOR OR CONSUMED BY THE ESTATE; POSTAGE AND SHIPPING FEES; DEPOSITION AND TRANSCRIPT COSTS; FEES CHARGED BY A PROCESS SERVER; PUBLICATION FEES; EXPERT WITNESS FEES; MESSENGER COSTS; CASEPage 323 of 432 SPECIFIC BONDS; AND ELECTRONIC DATABASE FEES CHARGED BY AN OUTSIDE VENDOR (E.G., WESTLAW, LEXISNEXIS, PACER, ETC.) EXCEPT FOR CHARGES TO RESEARCH ARIZONA STATUTES, CASE LAW, AND REGULATIONS. REIMBURSABLE COSTS DO NOT INCLUDE ANY COST NOT SPECIFICALLY OR DIRECTLY ASSOCIATED WITH THE DELIVERY OF GOODS OR SERVICES TO AN IDENTIFIED ESTATE, I.E. OVERHEAD. W. TIME AND EXPENSES FOR ANY MISFEASANCE OR MALFEASANCE ARE NOT COMPENSABLE. X. TIME AND EXPENSES TO CORRECT OR MITIGATE ERRORS CAUSED BY THE PROFESSIONAL, OR THEIR STAFF, ARE NOT BILLABLE TO THE ESTATE. Y. TIME OR EXPENSES TO RESPOND OR DEFEND AGAINST A REGULATORY COMPLAINT AGAINST THE PROFESSIONAL ARE NOT BILLABLE TO THE ESTATE. Z. A PROFESSIONAL MAY ONLY CHARGE INTEREST ON THEIR UNPAID COMPENSATION OR UNPAID REIMBURSEMENT WITH COURT APPROVAL. 8. POINTS OF REFERENCE. THE COURT SHALL CONSIDER POINTS OF REFERENCE WHEN CONSIDERING HOURLY RATES AND CHARGES, AS NON-BINDING BUT INFORMATIVE AND PERSUASIVE CONSIDERATIONS, INCLUDING: H. THE USUAL AND CUSTOMARY FEES CHARGED IN THE RELEVANT PROFESSIONAL COMMUNITY FOR SUCH SERVICES AS PERIODICALLY REPORTED BY THE ADMINISTRATIVE OFFICE OF THE COURTS. SEE EXHIBIT A. I. TO THE EXTENT AUTHORIZED BY LAW, A NON-LICENSED FIDUCIARY WHO IS RELATED TO A PROTECTED PERSON, WARD, OR DECEDENT, MAY RECEIVE REASONABLE COMPENSATION FOR SERVICES AS A CONSERVATOR, GUARDIAN, OR PERSONAL REPRESENTATIVE, RESPECTIVELY, COMMENSURATE WITH THE SERVICES PERFORMED. J. THE NUMBER OF BILLABLE HOURS AND SERVICES RENDERED IN COMPARABLE CASES BEFORE THAT JUDICIAL OFFICER. K. AS ONLY A GENERAL BENCHMARK, THE COMMON FIDUCIARY SERVICES RENDERED IN A ROUTINE GUARDIANSHIP OR CONSERVATORSHIP ENGAGEMENT ARE AS FOLLOWS (THE FIDUCIARY SHOULD BE PREPARED TO PROVIDE A REASONABLE EXPLANATION FOR EXCEEDING THESE BENCHMARKS, UPON REQUEST BY THE COURT): VII. ROUTINE BOOKKEEPING, SUCH AS DISBURSEMENTS, BANK RECONCILIATION, DATA ENTRY OF INCOME AND EXPENDITURES, Page 324 of 432 AND MAIL PROCESSING: FOUR (4) HOURS PER MONTH, AT A COMMENSURATE RATE FOR SUCH SERVICES. VIII. ROUTINE SHOPPING: SIX (6) HOURS PER MONTH IF WARD IS AT HOME, AND TWO (2) HOUR PER MONTH IF WARD IN A FACILITY, AT A COMMENSURATE RATE FOR SUCH SERVICES. IX. ONE ROUTINE PERSONAL VISIT PER MONTH BY THE FIDUCIARY TO THE WARD OR PROTECTED PERSON. X. PREPARATION OF CONSERVATOR’S ACCOUNT AND BUDGET: FIVE (5) HOURS PER YEAR. XI. PREPARATION OF ANNUAL GUARDIANSHIP REPORT: TWO (2) HOURS PER YEAR. XII. MARSHALLING OF ASSETS AND PREPARATION OF INITIAL INVENTORY: EIGHTY (80) HOURS. L. NOT MORE THAN ONE ATTORNEY MAY BILL FOR ATTENDING HEARINGS, DEPOSITIONS, AND OTHER COURT PROCEEDINGS ON BEHALF OF A CLIENT, NOR BILL FOR STAFF TO ATTEND, ABSENT GOOD CAUSE. M. EACH FIDUCIARY AND GUARDIAN AD LITEM SHALL NOT BILL FOR MORE THAN ONE PERSON TO ATTEND HEARINGS, DEPOSITIONS, AND OTHER COURT PROCEEDINGS ON BEHALF OF AN ESTATE, ABSENT GOOD CAUSE. THIS PROVISION DOES NOT PRECLUDE AN ATTORNEY, WHO REPRESENTS A FIDUCIARY OR GUARDIAN AD LITEM, FROM SUBMITTING A SEPARATE BILL. N. THE TOTAL AMOUNT OF ALL ANNUAL EXPENDITURES, INCLUDING REASONABLE PROFESSIONALS FEES, MAY NOT DEPLETE THE ESTATE DURING THE ANTICIPATED LIFESPAN OF THE WARD OR PROTECTED PERSON, UNTIL AND UNLESS THE CONSERVATOR HAS DISCLOSED THAT THE CONSERVATORSHIP HAS AN ALTERNATIVE OBJECTIVE, SUCH AS PLANNED TRANSITION TO PUBLIC ASSISTANCE OR ASSET RECOVERY, AS SET FORTH IN THE DISCLOSURE REQUIRED BY RULE OF PROBATE PROCEDURE 30.3. 9. COMPENSATION FACTORS. THE COURT SHALL CONSIDER THE FOLLOWING FACTORS, AS GENERAL PRINCIPLES, NOT RIGID RULES, WHEN DETERMINING WHAT CONSTITUTES REASONABLE COMPENSATION: M. THE REQUEST FOR COMPENSATION IN COMPARISON TO THE PREVIOUSLY DISCLOSED BASIS FOR FEES, ANY PRIOR ESTIMATE BY THE PROFESSIONAL, AND ANY COURT ORDER; [REFINE AFTER LEGISLATION IS ADOPTED] Page 325 of 432 N. THE EXPERTISE, TRAINING, EDUCATION, EXPERIENCE, AND SKILL OF THE PROFESSIONAL IN TITLE 14 PROCEEDINGS; O. WHETHER AN APPOINTMENT IN PRECLUDED OTHER EMPLOYMENT; A PARTICULAR MATTER P. THE CHARACTER OF THE WORK TO BE DONE, INCLUDING DIFFICULTY, INTRICACY, IMPORTANCE, NECESSITY, TIME, SKILL OR LICENSE REQUIRED, OR RESPONSIBILITY UNDERTAKEN; Q. THE CONDITIONS OR CIRCUMSTANCES OF THE WORK, INCLUDING EMERGENCY MATTERS (REQUIRING URGENT ATTENTION), SERVICES PROVIDED OUTSIDE REGULAR BUSINESS HOURS, POTENTIAL DANGER (E.G., HAZARDOUS MATERIALS, CONTAMINATED REAL PROPERTY, OR DANGEROUS PERSONS), OR OTHER EXTRAORDINARY CONDITIONS; R. THE WORK ACTUALLY PERFORMED, INCLUDING THE TIME ACTUALLY EXPENDED, AND THE ATTENTION AND SKILL-LEVEL REQUIRED FOR EACH TASK, INCLUDING WHETHER A DIFFERENT PERSON COULD HAVE RENDERED BETTER, FASTER OR LESS EXPENSIVE SERVICE; S. THE RESULT, SPECIFICALLY WHETHER BENEFITS WERE DERIVED FROM THE EFFORTS, AND WHETHER PROBABLE BENEFITS EXCEEDED COSTS; T. WHETHER THE PROFESSIONAL TIMELY DISCLOSED THAT A PROJECTED COST WAS LIKELY TO EXCEED THE PROBABLE BENEFIT, AFFORDING THE COURT AN OPPORTUNITY TO MODIFY ITS ORDER IN FURTHERANCE OF THE BEST INTEREST OF THE ESTATE. U. THE FEES CUSTOMARILY CHARGED AND TIME CUSTOMARILY EXPENDED FOR PERFORMING LIKE SERVICES IN THE COMMUNITY; V. THE DEGREE OF FINANCIAL RESPONSIBILITY ASSUMED; OR PROFESSIONAL RISK AND W. THE FIDELITY AND LOYALTY DISPLAYED BY THE PROFESSIONAL, INCLUDING WHETHER THE PROFESSIONAL PUT THE BEST INTEREST OF THE ESTATE BEFORE THE ECONOMIC INTEREST OF THE PROFESSIONAL; AND, X. THE “POINTS OF REFERENCE”, AS SET FORTH ABOVE. 10. NON-TRADITIONAL COMPENSATION ARRANGEMENTS. Page 326 of 432 C. FLAT-FEE: UNLESS OTHERWISE PROHIBITED BY LAW OR RULE, FLAT-FEE COMPENSATION IS PERMISSIBLE, AND MAY INCLUDE ALL OR PART OF AN ENGAGEMENT, IF THE PREDICTABILITY OF COSTS IS ENHANCED AND IF THE ECONOMIC INTERESTS OF THE PROFESSIONAL ARE THEREBY BETTER ALIGNED WITH THE ESTATE. THE BASIS FOR ANY FLAT FEE COMPENSATION SHALL BE DISCLOSED IN ADVANCE, IN WRITING, SPECIFYING IN DETAIL THE SERVICES INCLUDED IN ANY FLAT-FEE, THE UNITS OF EACH SERVICE, AND THE USUAL HOURLY RATE FOR SUCH SERVICES. THE ACTUAL DELIVERY OF SERVICES INCLUDED WITH THE FLAT FEE SHALL BE DOCUMENTED. D. CONTINGENT FEE: UNLESS OTHERWISE PROHIBITED BY LAW OR RULE, NOTHING IN THESE GUIDELINES SHALL PROHIBIT A CONTINGENT FEE ENGAGEMENT WITH AN ATTORNEY, PROPERLY EXECUTED IN WRITING, E.G. REPRESENTATION ON A PERSONAL INJURY CLAIM. Page 327 of 432 EXHIBIT A FOR 2011 STATEWIDE FEE GUIDELINES FOR ASSESSING THE REASONABLENESS OF FIDUCIARY, GUARDIAN AD LITEM, AND ATTORNEY COMPENSATION IN TITLE 14 PROCEEDINGS This Exhibit shall be periodically updated by the Administrative Office of the Courts, and an updated Exhibit A may be downloaded at Hourly Professional Compensation Range Minimum Median Average Maximum Attorney Licensed Fiduciary Guardian ad Litem PLEASE NOTE: THE HOURLY RATES REPORTED IN EXHIBIT A ARE COMPILED BY THE ADMINISTRATIVE OFFICE OF THE COURTS AS A POINT OF REFERENCE ON ESTIMATED CURRENT MARKET RATES AMONG PROFESSIONALS BASED UPON CURRENTLY AVAILABLE INFORMATION. THESE RATES ARE NON-BINDING ON THE PARTIES, PROFESSIONALS OR THE COURT, BUT ARE INFORMATIVE AND PERSUASIVE AS AN INITIAL POINT OF REFERENCE IN DETERMINING REASONABLE COMPENSATION. ACTUAL COMPENSATION RATES WILL VARY BASED UPON OTHER FACTORS INCLUDING THE EXPERIENCE OF THE PROFESSIONAL, GEOGRAPHIC AREA OF SERVICE, AND RESOURCES OF THE FIRM. Page 328 of 432 Risk Assessment Form, Instructions, & Order Page 329 of 432 Page 330 of 432 Page 331 of 432 Page 332 of 432 Page 333 of 432 Page 334 of 432 Page 335 of 432 Page 336 of 432 Page 337 of 432 Page 338 of 432 Page 339 of 432 Page 340 of 432 Page 341 of 432 Page 342 of 432 Page 343 of 432 Page 344 of 432 Page 345 of 432 Page 346 of 432 Page 347 of 432 Page 348 of 432 Page 349 of 432 Page 350 of 432 Page 351 of 432 Page 352 of 432 Order to Guardian Page 353 of 432 Page 354 of 432 Page 355 of 432 Page 356 of 432 Order to Conservator Page 357 of 432 Page 358 of 432 Page 359 of 432 Page 360 of 432 Order to Guardian and Conservator Page 361 of 432 Page 362 of 432 Page 363 of 432 Page 364 of 432 Page 365 of 432 Proof of Restricted Account from Financial Institution Page 366 of 432 Page 367 of 432 Form 5 (Contained in Rule 38) Page 368 of 432 Page 369 of 432 Page 370 of 432 Page 371 of 432 Page 372 of 432 Forms 6-10 (Contained in Rule 38) Page 373 of 432 Page 374 of 432 Page 375 of 432 Page 376 of 432 Page 377 of 432 Page 378 of 432 Page 379 of 432 Page 380 of 432 Page 381 of 432 Page 382 of 432 Page 383 of 432 Page 384 of 432 Page 385 of 432 Page 386 of 432 Page 387 of 432 Page 388 of 432 Page 389 of 432 Page 390 of 432 Page 391 of 432 Page 392 of 432 Page 393 of 432 Page 394 of 432 Page 395 of 432 Page 396 of 432 Page 397 of 432 Page 398 of 432 Page 399 of 432 Page 400 of 432 Page 401 of 432 Page 402 of 432 Page 403 of 432 Page 404 of 432 Page 405 of 432 Page 406 of 432 Page 407 of 432 Page 408 of 432 Page 409 of 432 Page 410 of 432 Page 411 of 432 Page 412 of 432 Page 413 of 432 Page 414 of 432 Page 415 of 432 Page 416 of 432 Page 417 of 432 Page 418 of 432 Page 419 of 432 Page 420 of 432 Page 421 of 432 Page 422 of 432 Page 423 of 432 Page 424 of 432 Page 425 of 432 Page 426 of 432 Page 427 of 432 Page 428 of 432 Page 429 of 432 Page 430 of 432 Page 431 of 432 Page 432 of 432