RULE 20 (B)(2)

This reporting requirement, which, by the way, seems nothing to do with the probate rules followed by any Arizona court, is an IMMENSE additional requirement for certified fiduciaries. I’m assuming the intent is that when a fiduciary engaged in mass fraudulent conduct is discovered, the Supreme Court would like to have on file all their clients prior to the most recent June, and can track down what they’ve done wrong. While that idea might sound good initially on paper, I think adding a fairly burdensome administrative reporting requirement out there is again focusing too much on the few bad eggs out there, and probably won’t do anything to catch or dissuade them. The type of fiduciaries engaged in mass theft are not going to be the people I trust to complete these accurately, and so you’ve increased an administrative burden without really doing anything to prevent the conduct in question. And the scope of this is ridiculously extreme. If I am a certified fiduciary, I have to keep track of any time in 3 years where I may have had to make a temporary medical decision for a client who needed a surrogate for a very brief period? And what are the actions taken that need to be enumerated, “Having acted as agent”? Or does it required a detailed statement of every “action.”

If the commission is concerned that there isn’t enough training or oversight required to give someone the certification of a certified fiduciary (and this really seems beyond the scope of probate rules), than they should look into beefing up this program, because this backhanded attempt doesn’t do anything constructive, but it does make things more onerous on the conscientious who will comply.

Craig Hunter Wisnom
Bogutz & Gordon, P.C.
3503 N. Campbell Avenue Suite 101
Tucson, Arizona 85719
(520) 321-9700
www.bogutzandgordon.com

RULE 30 (B)

I concur with Mr. Fleming’s comments on the proposed plan, on top of all other documents, reportings, and accountings required, one more thing adds to the cost for clients of these procedures, without imparting any additional benefit or protection on the person. Over the past 10 years we’ve seen the number of required documents filed with standard conservatorships and other matters rise greatly, and I would be hard pressed to determine that any protected person is more protected under the additional paperwork than they were previously.

Craig Hunter Wisnom
Bogutz & Gordon, P.C.
3503 N. Campbell Avenue Suite 101
Tucson, Arizona 85719
(520) 321-9700
www.bogutzandgordon.com

RULE 33

I concur with Mr. Fleming’s specific and general comments on this Proposed Rule in the strongest possible terms. This is an extreme expansion of the information necessitated to the court, and goes far beyond what the court already can do to determine when fees are reasonable. It seems the judicial officers are completely capable of making determination of fees are reasonable or not, and certainly nothing in this morass of required information will make this even easier. THE REQUIREMENTS TO MAKE PUBLIC ANY FIDUCIARY’S EMPLOYEES SALARIES IS BEYOND ABSURD. “If the fiduciary is charging for services done directly by the fiduciary’s employee” we have to disclose that employee’s salary. Our firm has to tell the court anytime our fees are submitted for approval what the paralegals make? Or when there is a flat or percentage fee, all employees’ wages must be submitted?

A rate schedule is something that may initially sound like a good idea, but I agree with Mr. Fleming that it can really serve no benefit or purpose in practical application.

Craig Hunter Wisnom
Bogutz & Gordon, P.C.
3503 N. Campbell Avenue Suite 101
Tucson, Arizona 85719
(520) 321-9700
www.bogutzandgordon.com

I concur with Robert Fleming--Proposed Rule 6(A)(1) and 6(A)(2) requires the proposed fiduciary's and proposed ward's Social Security numbers. I also suggest eliminating the SSN from the cover sheet altogether.

Roger T. Coventry
Assistant Public Fiduciary
Maricopa County
Certified Fiduciary No. 20451
222 N. Central Ave., Suite 4100
Phoenix, AZ 85004
(602) 506-7120

Hon. Patti Noland, President
Arizona Association of Superior Court Clerks
110 W. Congress, 1st Floor
Tucson, Arizona 85701
520-740-3201
[email protected]

Kate McMillan
3920 East 5th Street
Tucson Arizona 85711
(520) 327 6161
(520) 318-1516
[email protected]
Arizona Bar Number 3956

Benjamin Burnside
Bogutz & Gordon
3503 N. Campbell Ave., Suite 101
Tucson, AZ 85719-2007
520-321-9700
[email protected]

Rule 6 A.1.(f) and 2.(e)

I concur with the concern of others about making Social Security numbers more accessible, even if only by parties in cases. With the trend toward non-disclosure of Social Security numbers in general, why require even greater disclosure of this sensitive information often used in identity theft?

Benjamin Burnside
Bogutz & Gordon
3503 N. Campbell Ave., Suite 101
Tucson, AZ 85719-2007
520-321-9700
[email protected]

Rule 9 A.

Requirement to indicate judicial officer hearing case in notice is difficult and unnecessary. We often do not know this information at time of notice, the officer hearing the case can change, and so long as the judicial officer is legally qualified why is this information relevant? So long as interested parties have the date, time and location, along with information about the matter being heard (copy of petition, etc.), there is no need to indicate in the notice which judicial officer will be hearing the case.

Benjamin Burnside
Bogutz & Gordon
3503 N. Campbell Ave., Suite 101
Tucson, AZ 85719-2007
520-321-9700
[email protected]

Rule 9 B.1.

A written objection should be allowed less than five days prior to the hearing without having to make an appearance. Pima County has used Rule 9.5 (d)(1) with a three day period. Adding those extra two days, though they seem insignificant, could often require the time and expense of appearing personally that could be avoided with a written objection.

Benjamin Burnside
Bogutz & Gordon
3503 N. Campbell Ave., Suite 101
Tucson, AZ 85719-2007
520-321-9700
[email protected]

Rule 10 D.1.

Withdrawal is often made due to non-compliance by the fiduciary with instructions from his or her counsel. Therefore, requiring that the attorney "confirms that all guardian reports, accountings, or other required reports have been filed and that all statutory requirements have been met" might prohibit the attorney from fulfilling his or her obligation not to continue to represent a wayward fiduciary. It is unduly burdensome and unrealistic in many cases.

Benjamin Burnside
Bogutz & Gordon
3503 N. Campbell Ave., Suite 101
Tucson, AZ 85719-2007
520-321-9700
[email protected]

Rule 10 D.2.

A disclosure should be required only of unpaid fees, not those already paid, upon withdrawal.

Benjamin Burnside
Bogutz & Gordon
3503 N. Campbell Ave., Suite 101
Tucson, AZ 85719-2007
520-321-9700
[email protected]

Rule 10 E.

The requirement that parties and counsel diligently pursue their cases seems like stating the obvious, and yet might open up more contention over the meaning of the term "diligently." Counsel already has specific ethical requirements to fulfill and does not need this admonition. Parties have statutory duties as fiduciaries. This provision, though I am sure is well intended, should be deleted.

Benjamin Burnside
Bogutz & Gordon
3503 N. Campbell Ave., Suite 101
Tucson, AZ 85719-2007
520-321-9700
[email protected]

Rule 11 B.

Telephonic appearances are a reality in this mobile society and cut court costs and ease judicial administration. In any event, a court can always deny a motion to appear telephonically for its own reasons. Why mandate a 30 day (too long under most circumstances) or 5 day after receipt of notice period for such a motion? Judges can decide which cases merit telephonic appearances and which do not without arbitrary periods being set by rule.

Benjamin Burnside
Bogutz & Gordon
3503 N. Campbell Ave., Suite 101
Tucson, AZ 85719-2007
520-321-9700
[email protected]

Rule 15 A.5.

Requiring the lodging of an order five days prior to the hearing seems unnecessary. Unless there has been a demonstrated problem in the courts without having such a requirement, it seems such a rule is unnecessary. There are often events affecting the language of such an order that are happening immediately prior to the hearing date, and late changes to the language of such an order allow the parties flexibility in getting the order just right.

Benjamin Burnside
Bogutz & Gordon
3503 N. Campbell Ave., Suite 101
Tucson, AZ 85719-2007
520-321-9700
[email protected]

Rule 17 D.1.

Requiring an objection to be filed five days prior to a hearing, or requiring appearance in person, will add to the expense and burden of having to appear at hearings that could be avoided with a three day requirement, as used now in Pima County. Those two days often yield either resolution of contentious issues or confirm the need for an objection and avoid the need for an initial hearing.

Benjamin Burnside
Bogutz & Gordon
3503 N. Campbell Ave., Suite 101
Tucson, AZ 85719-2007
520-321-9700
[email protected]

Rule 19.A.

Requiring that the order appointing attorney, medical professional and investigator be filed 30 days prior to the hearing date will at times conflict with the actual time provided before the hearing date. Some flexibility should be given in the rule to the court and parties in cases in which a hearing date is scheduled fewer than 30 days from the filing of the petition (and such order).

Benjamin Burnside
Bogutz & Gordon
3503 N. Campbell Ave., Suite 101
Tucson, AZ 85719-2007
520-321-9700
[email protected]

Rule 20 B.1. and B.2.

These requirements of reporting of cases in which the certified fiduciary has acted as guardian, conservator or agent are unduly burdensome and duplicative. It is especially troubling that so much information need be provided in cases of an agency under power of attorney, since principals establish such arrangements in part to maintain privacy and avoid court involvement. It is questionable whether the disclosure of such information can even be required by these rules, and requiring the actions of the agent to be disclosed is at best vague. Exactly what actions are meant and in how much detail? It is questionable whether unethical fiduciaries would honestly self-report such information, and also questionable as to how courts will review such information and determine whether further action is required. This rule assumes that courts are ready and able to take on such additional monitoring.

Benjamin Burnside
Bogutz & Gordon
3503 N. Campbell Ave., Suite 101
Tucson, AZ 85719-2007
520-321-9700
[email protected]

Rule 30 B.1.

Annual conservatorship plans will be an additional requirement and burden for parties and the courts. Compliance with these will likely be in the form of highly speculative and poorly thought out guesses at what the next year holds for a conservatorship.

(b) anticipated services to be provided by the conservator will have to be described in only the most general terms, since the need for such services is often impossible to determine ahead of time.

(c) special needs or requests are even more difficult to determine in advance.

(d) anticipated expenses, including fiduciary fees or attorney fees, often based on time spent, are at best speculative, and may encourage a high estimate of such amounts to avoid the appearance of being "over budget." And will courts avoid some sort of bad outcome by requiring such estimates, and will courts or interested persons act prospectively on such information?

(e) a management plan including major changes in financial strategies or status again is an exercise in predicting the future, since such decisions must be made due to changing market conditions, needs for disbursements, etc.

Requiring such conservatorship plans will likely become a pro forma filing that adds little oversight to the process.

Benjamin Burnside
Bogutz & Gordon
3503 N. Campbell Ave., Suite 101
Tucson, AZ 85719-2007
520-321-9700
[email protected]

Rule 33 A.1.

Requiring gross and net estate values, as mentioned in other comments, would require substantial work to have any real meaning and seems of little relevance to the reasonableness of fees in most cases. And, also as mentioned in other comments, will such information be kept confidential in the same manner as accountings, etc.? It seems that existing requirements for inventories, accountings, etc. are sufficient.

Benjamin Burnside
Bogutz & Gordon
3503 N. Campbell Ave., Suite 101
Tucson, AZ 85719-2007
520-321-9700
[email protected]

Rule 33 E.

The requirement that fee affidavits disclose the earnings of employees of fiduciaries surely must be an oversight. This will cause an uproar when word of this reaches practitioners, fiduciaries and the general public. This requirement cannot stand. It is an invasion of privacy and irrelevant to the determination of the reasonableness of fees.