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Subject: R-07-0012 Arizona Rules of Probate Procedure
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JRogers Posts:1
10/30/2007 11:46 AM  
R-07-0012

PETITION FOR ADOPTION OF THE ARIZONA RULES OF PROBATE PROCEDURE

TO PROVIDE STATEWIDE, STANDARDIZED PROBATE RULES; SIMPLE AND FUNCTIONAL FORMS ADAPTABLE TO INTERACTIVE WEB-BASED FORMATS; AND PROCEDURES TO EXPEDITE PROCESSES AND CASE MANAGEMENT

Petitioner:
Vice Chief Justice Rebecca White Berch, Chair
Probate Rules Committee
1501 W. Washington St., Phoenix, Az. 85007
602-452-3535

Filed October 30, 2007

Comments are due May 20, 2008.

ADOPTED as modified, effective January 1, 2009.

Attachment: 1115103453171.pdf
Attachment: 1115103454654.doc

William Klain Posts:1
11/07/2007 4:56 PM  
William G. Klain
8767 E. Via de Commercio, Suite 102
Scottsdale, AZ 85258-0001
480-947-1911
wklain@lang-baker.com

I note that proposed Rule 10(a)(2) of the proposed Arizona Rules of Probate Procedure, that section which authorizes limited scope representations, is silent as to how an attorney effectuates a withdrawal from a limited scope appearance upon completion of the representation. I suggest that the issue of withdrawal be addressed in the following manner. In the event the client consents to the withdrawal, the attorney would file a notice of withdrawal supported by client consent and a statement that the attorney has completed the representation specified in the notice of limited scope representation. Under such circumstances, the withdrawal would be effective upon filing of the notice. Absent client consent, the attorney would file a motion to withdraw and submit a form of order to the court. If no objection to the motion is filed, the court would sign the order unless it determines that the limited scope representation (as delineated in the notice of limited appearance) has not be completed. If objection to the motion is filed, the court would conduct a hearing to determine whether the representation has been completed.
rbfleming Posts:15
01/28/2008 7:51 PM  
Proposed Rule 6(A)(1) and 6(A)(2) require the filing of an information sheet with the proposed fiduciary's and proposed ward's Social Security numbers. Although this form is marked as a "Confidential Document," Rule 7(F)(2) permits any party or their counsel to view and copy all confidential information and documents. This needs to be modified so that no SSN disclosure occurs. I would suggest simply eliminating the SSN from the cover sheet altogether.

Robert Fleming
Fleming & Curti, PLC
330 N. Granada
Tucson, Arizona 85701
520-622-0400
www.elder-law.com
www.specialneedsalliance.com
rbfleming Posts:15
01/28/2008 7:55 PM  
Rule 10(C)(1)(b) imposes a duty to include a Certified Fiduciary's number on all pleadings filed with the Probate Court. Since some Certified Fiduciaries are attorneys, it should be made clear that this rule only applies to documents filed by the Certified Fiduciary qua fiduciary.

Robert Fleming
Fleming & Curti, PLC
330 N. Granada
Tucson, Arizona 85701
520-622-0400
www.elder-law.com
www.specialneedsalliance.com
rbfleming Posts:15
01/28/2008 7:59 PM  
Proposed Rule 10(C)(3)(a) requires a fiduciary, upon termination of his/her/its capacity as fiduciary, to read the requirements for termination of ALL types of fiduciaries. Might this be a little overkill? Perhaps they could be required to read only those sections applicable to the type of fiduciary they actually are in a given case? The Rule has no mechanism for establishing compliance. Must the final Petition for Discharge include an allegation that the Rule has been complied with?

Robert Fleming
Fleming & Curti, PLC
330 N. Granada
Tucson, Arizona 85701
520-622-0400
www.elder-law.com
www.specialneedsalliance.com
rbfleming Posts:15
01/28/2008 8:04 PM  
Proposed Rule 10(D)(2) appears to require a filing of fees even in probate and trust interpretation proceedings. This would be a significant increase in the scope of current law and practice. It may be that the Proposed Rule only intends its application to cover cases in which the attorney is seeking to withdraw, but it does not so limit itself. Even if it is intended to apply only to withdrawal cases, it amounts to a major change in the law, which currently allows fiduciaries and their counsel to enter into private agreements subject only to disclosure and approval of the interested parties (since most probate and trust proceedings do not currently even include the filing of an accounting with the Court).

Robert Fleming
Fleming & Curti, PLC
330 N. Granada
Tucson, Arizona 85701
520-622-0400
www.elder-law.com
www.specialneedsalliance.com
rbfleming Posts:15
01/28/2008 8:09 PM  
Proposed Rule 12, by requiring non-appearance hearings to be set at a specific time, would revert Pima County practice to an arrangement that proved confusing and wasteful. Although the notice might indicate that no one need appear, quite often unrepresented interested persons would show up at the time of the hearing, even though they had no objection to any of the relief requested, because it appeared to them that they had been commanded to appear. Hearings set for a date but no specific time help ameliorate that problem, since interested persons have to inquire of someone before they make the journey to the courthouse for a pointless appearance.

Under the Proposed Rule, the confused unrepresented interested person will now be ordered to pay an appearance fee and every appearance turned into a contested proceeding. While that result might well be appropriate in some cases, it seems likely that the majority of cases could better be dealt with by simply getting information to the interested person that any objection needs to be filed, in writing, with an appearance fee if none has previously been paid, before the date on the non-appearance hearing notice.]

Robert Fleming
Fleming & Curti, PLC
330 N. Granada
Tucson, Arizona 85701
520-622-0400
www.elder-law.com
www.specialneedsalliance.com
rbfleming Posts:15
05/07/2008 12:08 AM  
Proposed Rule 36 ("Renewal of Guardian's Inpatient Mental Health Authority") amounts to a complete revision of A.R.S. sec. 14-5312.01(P). That section mandates an annual report of a MH guardian to accompany the annual guardian's report. "If the report indicates that the ward currently needs this treatment, the guardian's authority to consent to this treatment continues. If the report supports the continuation of the guardian's authority to consent to this treatment, the ward's attorney shall review the report with the ward. The ward may contest the continuation of the guardian's authority by filing a request for a court hearing within ten business days after the report is filed."

Note that the statute makes the continuation of authority automatic (assuming the physician/psychologist report supports continuation), mandates that the court-appointed attorney review the report with the ward, and then puts the burden on the ward to contest the continued authority. Meanwhile, the authority continues.

The proposed Rule puts the burden of seeking continuation on the guardian, and requires an affirmative motion and hearing before continuation of the authority.

Robert Fleming
Fleming & Curti, PLC
330 N. Granada Ave.
Tucson, Arizona 85701
520-622-0400
www.elder-law.com
www.specialneedsalliance.com
rbfleming Posts:15
05/07/2008 12:18 AM  
Surely Proposed Rule 33(A)(1) must be an inadvertent error. The problems with requiring every fee application to include "the current gross and net value of the estate" are innumerable, and the benefits of such a practice difficult to see:

1. Not every guardian/conservator/attorney knows -- or has any reason to know -- the value of the estate.
2. "Estate" is not defined. Should the affidavit include the value of all assets beneficially owned by the ward (in other words, trust assets)? If the point is to give the Judge a thumbnail view of the size of the fee request as a percentage of the "estate", then the entire value of property ought to be included. What about "estate" assets that are not under the authority of the Court? How will those values be checked?
3. The value of the estate [i] [/i]as of when[i] [/i]? As of the time of the application? Does that mean that the conservator will be required to revalue the estate in order to seek fees? Or the value at the time of the last accounting? If that is the point, can't the Judge just look at, say, the last accounting?
4. What is the "net value" of an estate? Does this mean deducting encumbrances? Will the guardian, the court-appointed attorney, or even the attorney for the fiduciary be charged with knowing the value of encumbrances?
5. On the other side of the equation, what value is there to the Court to have this information on the fee application? If it is something beyond the ability to assess the proposed fee as a percentage of the size of the estate, it is an elusive benefit.
6. After all the effort to maintain confidentiality about the ward's estate, the value is to be splashed across a pleading that is not a "confidential document" pursuant to Proposed Rule 7?

Robert Fleming
Fleming & Curti, PLC
330 N. Granada Ave.
Tucson, Arizona 85701
520-622-0400
www.elder-law.com
www.specialneedsalliance.com
rbfleming Posts:15
05/07/2008 12:27 AM  
Proposed Rule 33(E) would require a listing of the salary information for every billing employee of the fiduciary. This would be impossible to accomplish (at least at our office, salaries actually change from year to year -- are we to include the salary in place for each employee at the time of each entry?), violate the privacy of every employee (remember that fee applications are not even confidential documents -- if they were, then the breach of employee's private information would only be to the subset of every interested person on every estate administered by the fiduciary) and present an incalculable administrative nightmare for every professional fiduciary (most employers, including fiduciaries, are eager to prevent office-wide discussions of salaries and comparisons among employees).

Surely this information need not be required in every fee application. Would it not be more than sufficient to make clear that the Court may require supplementation in cases where the fees are questioned, and to make that supplementation a confidential document? Even that would cause significant problems for fiduciaries, of course, but the current iteration of the rule is a nightmare for fiduciaries.

Robert Fleming
Fleming & Curti, PLC
330 N. Granada Ave.
Tucson, Arizona 85701
520-622-0400
www.elder-law.com
www.specialneedsalliance.com
rbfleming Posts:15
05/07/2008 12:35 AM  
Proposed Rule 33(G) would be a mistake. The whole sordid history of presumptive fee schedules has taught us that wherever they are proposed and adopted, they become minimum (rather than maximum) fees, and that they usually too-generously compensate fiduciaries.

On the other hand, if the Court could establish a presumptive fee schedule and actually use it to lower fees, then the effect will be to drive out legitimate and excellent fiduciaries and leave the field to less-skilled, poorly-reviewed, but cheap fiduciaries. This may feel like a good move at the inception, but it would ultimately have a pernicious effect.

I understand that the Proposed Rule does not mandate adoption of a fee schedule, but even sanctioning it by county option invites exactly the kind of non-uniformity these Proposed Rules were conceived to combat. Furthermore, what does it mean to indicate that the "superior court or county" is permitted to adopt a fee schedule? Does this mean that the Board of Supervisors in a given County is authorized to adopt a fee schedule for fiduciaries? The Public Fiduciary? Who is "the county" for purposes of this Proposed Rule?

Robert Fleming
Fleming & Curti, PLC
330 N. Granada Ave.
Tucson, Arizona 85701
520-622-0400
www.elder-law.com
www.specialneedsalliance.com
rbfleming Posts:15
05/07/2008 12:39 AM  
Proposed Rule 33 is in its entirety cumbersome and unworkable, for the reasons I have already enumerated in addition to the general tenor of suspicion and the requirements of voluminous filings. The Comment to Proposed Rule 33, however, is generally excellent. I would suggest making the Comment the Rule, and adding a provision that the Court is permitted to require a fiduciary or counsel supplement any questioned fee affidavit as may be necessary in an individual case.

Robert Fleming
Fleming & Curti, PLC
330 N. Granada Ave.
Tucson, Arizona 85701
520-622-0400
www.elder-law.com
www.specialneedsalliance.com
rbfleming Posts:15
05/07/2008 12:50 AM  
Proposed Rule 30(A) effectively exempts temporary conservators from having to file an inventory at all, and 30(C) arguably permits a temporary conservator to escape ever having to file an accounting (since the accounting is due after the nine-month anniversary of the permanent appointment). Neither place deals with the not-infrequent reality that one person may be appointed temporary conservator but another appointed as permanent conservator.

I can understand that the date for the inventory and accounting have to be keyed off of some event, but what possible reason is there for not making the key date the first date a fiduciary has the authority to act, whether temporary or permanent? If the inventory is due 90 days after first appointment, and a different permanent conservator is appointed, the "problem" of figuring out due dates takes care of itself. If no permanent conservator is appointed, the due date for the accounting, and the requirement of an inventory, both take care of themselves. I respectfully submit that the key issue is not the title held by the fiduciary, but the reality of the fiduciary having handled the ward's money, that should trigger an obligation and a date by which that obligation should be fulfilled.

Robert Fleming
Fleming & Curti, PLC
330 N. Granada Ave.
Tucson, Arizona 85701
520-622-0400
www.elder-law.com
www.specialneedsalliance.com
rbfleming Posts:15
05/07/2008 12:56 AM  
I like the idea of "Annual Conservatorship Plans" (Proposed Rule 30(B)), but am troubled by the proposal as it is contained here. When I asked a member of the Committee if any thought had been given to the increased cost of requiring yet another filing, and this one possibly a complicated and even contentious one, I was told not to blow the problem out of proportion -- you just fill out a two-page form and send it in, no big deal.

Either the Annual Conservatorship Plan is a real document, conveying real information, and imparting value to the Court, the ward and the other interested persons, or it is a bit of busy-work required by yet another rule. If the former, it is going to cost something to the estate to produce, and it should include not just the ward's physical location and anticipated expenses, but also investment plans, some narrative about the ability of the estate to provide the ward's care, some notion of tax planning, gifting by the ward, and efforts to maximize the ward's autonomy and possible improvement. If it is envisioned as simply a two-page form that the conservator fills out and drops off, and the Court does not have time or staff to review substantively, why require it?

Robert Fleming
Fleming & Curti, PLC
330 N. Granada Ave.
Tucson, Arizona 85701
520-622-0400
www.elder-law.com
www.specialneedsalliance.com
rbfleming Posts:15
05/07/2008 12:58 AM  
The Arizona Trust Code having been all but adopted by the Arizona Legislature, it would be a prudent effort to review all of the Proposed Rules for compliance with the new law. A number of changes in the ATC (for instance, the provisions about representative capacities, and the replacement of Guardians [i] [/i]ad litem[i] [/i] with "representatives" in new ARS sec. 14-1408) will either require or at least suggest reworking of some Rules.

Robert Fleming
Fleming & Curti, PLC
330 N. Granada Ave.
Tucson, Arizona 85701
520-622-0400
www.elder-law.com
www.specialneedsalliance.com
rbfleming Posts:15
05/07/2008 1:02 AM  
Form 3 ("Order to Conservator and Acknowledgment") directs the conservator to file an inventory within 90 days of appointment, but does not note that the Proposed Rule only applies to permanent appointments. Similarly, the Order directs filing of an accounting covering the year after appointment, while the Proposed Rule directs that the accounting cover 9 months from the appointment. The Order should be modified to conform to the Rule as it is finally adopted.

Robert Fleming
Fleming & Curti, PLC
330 N. Granada Ave.
Tucson, Arizona 85701
520-622-0400
www.elder-law.com
www.specialneedsalliance.com
lprice66 Posts:7
05/08/2008 3:54 PM  
Lisa M. Price, RG, President, Arizona Fiduciaries Association, Inc.
Certified Fiduciary Certificate No. 20120
Entrust Fiduciary Services, Inc.
P.O. Box 249
Yuma, Arizona 85366-0249
Telephone: (928) 782-0974
Facsimile: (928) 782-3889
Email: lisa.price@entrustfiduciary.com
Website: www.entrustfiduciary.com


Rule 6. Probate Information Form

1. Rule 6(A)(1) fails to anticipate situations where the nominated fiduciary is a corporation.

2. Rule 6(A)(1) and (2) requires the disclosure of the social security number of the nominated fiduciary and proposed ward/protected person. Rule 6(C) states that this information is confidential as outlined in Rule 7. The problem is that Rule 7 allows for this information to be disclosed to parties of the case and then allows for such information to be used as an exhibit in a trial, thereby making it a matter of public record.

3. Rule 6(B) states that the court may, in its discretion, require that a trustee supply the information outlined in Rule 6(A)(2) for the trustor and trust beneficiaries. The comments section for Rule 6 states that the "sole purpose of the probate information form is to provide the court with the information it needs to identify accurately the fiduciary and the ward or protected person." I can understand the need for this information for the fiduciary as the court would need it to complete a fiduciary arrest warrant, but I cannot understand the need for this information for trust beneficiaries. I also do not believe that many trust beneficiaries would submit this information to the trustee for filing with the court. This is confidential information that the trustee does not have the right to disclose without the knowledge or consent of the trustor and/or trust beneficiaries.
lprice66 Posts:7
05/08/2008 3:55 PM  
Lisa M. Price, RG, President, Arizona Fiduciaries Association, Inc.
Certified Fiduciary Certificate No. 20120
Entrust Fiduciary Services, Inc.
P.O. Box 249
Yuma, Arizona 85366-0249
Telephone: (928) 782-0974
Facsimile: (928) 782-3889
Email: lisa.price@entrustfiduciary.com
Website: www.entrustfiduciary.com


Rule 7. Confidential Documents and Information

While Rule 7(D) allows for a motion to be filed requesting confidential information be redacted from a document, this does nothing but cost the estate additional and unnecessary administrative costs.

Rule 6 should be amended to either remove the requirement to provide a social security number or Rule 7 should be amended to require that the clerk of the court redact the social security number of the fiduciary, ward, trustor or trust beneficiary prior to providing this document to any interested party.

The comments to Rule 7 state "If a party redacts account numbers or social security numbers from a confidential form, the form then may be made available for public viewing." This would seem to imply that prior to filing the probate information form as an exhibit in a hearing, the filing party would need to redact the social security numbers from the document but there is no provision for this in the rule. This needs to be clarified.
lprice66 Posts:7
05/08/2008 3:58 PM  
Lisa M. Price, RG, President, Arizona Fiduciaries Association, Inc.
Certified Fiduciary Certificate No. 20120
Entrust Fiduciary Services, Inc.
P.O. Box 249
Yuma, Arizona 85366-0249
Telephone: (928) 782-0974
Facsimile: (928) 782-3889
Email: lisa.price@entrustfiduciary.com
Website: www.entrustfiduciary.com


Rule 10. Duties Owed to the Court

1. Rule 10(C)(1)(c) states a court-appointed fiduciary shall "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 72 hours of learning of the change in address." Many local rules require the filing of a Notice of Change of Address when the ward has been moved. Does this rule then negate the need to file such a notice?

2. Rule 10(C)(3)(a) requires that a fiduciary review all statutory requirements related to a personal representative, special administrator, guardian and conservator prior to termination of appointment. This rule should be amended to read "Before a court-appointed fiduciary may withdraw from a case or have the fiduciary's responsibilities judicially terminated, the fiduciary shall review the statutory requirements outlined below as directly related to the position held by the fiduciary:"

Also, this section includes no mechanism to ensure this requirement has been met. As stated by Robert Fleming, will it be required that we attest to this in our final petition to the court?
lprice66 Posts:7
05/08/2008 3:59 PM  
Lisa M. Price, RG, President, Arizona Fiduciaries Association, Inc.
Certified Fiduciary Certificate No. 20120
Entrust Fiduciary Services, Inc.
P.O. Box 249
Yuma, Arizona 85366-0249
Telephone: (928) 782-0974
Facsimile: (928) 782-3889
Email: lisa.price@entrustfiduciary.com
Website: www.entrustfiduciary.com


Rule 19. Appointment of Attorney, Medical Professional, and Investigator

Rule 19(A) requires that the order appointing the attorney, medical professional and investigator be submitted to the court "not less than 30 days before the scheduled hearing on the petition." Many times a hearing on a petition for appointment of guardian and/or conservator may be heard in less than 30 days from the date of filing the petition. This rule should contain the same language as that contained in Rule 11(B) which states "unless the notice of hearing provides for fewer than 30 days' notice, in which case the request shall be filed within five days after receipt of the notice setting the hearing." Alternatively, the language can simply state that the order shall be filed with the petition.
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