Rules 2, 6, 7, 9, 10, 17, 33, 35, 36, and 38
A number of “housekeeping” and substantive changes have been made to the probate rules.
1. A.R.S. 14-5651(a) previously contained a certification requirement for fiduciaries; this statute was changed in September 2009 to instead require a license. Therefore, the words “certified fiduciary” have been changed to “licensed fiduciary”, and the word “certification” has been changed to “license.” These changes are reflected in Probate Rules 2(B), 6(B), 6(C), 7(G)(6), 7(H)(5), 10(C)(1)(b), and 33(E); in the comments to Probate Rules 6 and 35; and in Forms 1, 2, 3, and 4 of Probate Rule 38.
Impact: References in court generated documents to “certified” fiduciaries, or their certifications, should now be shown as “licensed” fiduciaries, or their “licenses.”
2. Inventories and appraisements filed pursuant to A.R.S. § 14-3706 for decedents’ estates have been removed from the definition of “confidential document” in Rule 7(A)(1)(c). The comment to Rule 7 has been amended to state the reason for this change. (The comment explains that protected persons are vulnerable to exploitation, and therefore inventories in conservatorships are maintained as confidential documents; but that same consideration does not apply to inventories of decedents’ estates.)
Impact: Inventories and appraisements pursuant to A.R.S. § 14-3706 for decedents’ estates no longer need to filed by a party or maintained by the clerk as a “confidential document” under Rule 7. “Interested parties” will be able to obtain copies of the documents, if filed, because they are no longer confidential.
3. Probate Rules 6(E) and 10(C)(1) have been amended to require that if an updated probate information form reflects a change in the ward’s, protected person’s, or fiduciary’s address or telephone number, the fiduciary must mail or deliver a copy of the updated probate information form to the ward’s/protected person’s attorney, to a guardian ad litem, and to all other parties in the case in which the updated form has been filed.
Impact: These rule changes establish an additional responsibility of a fiduciary when there has been a change of contact information.
4. An amendment to Probate Rule 9(D) specifies that if the court orders that a notice of hearing on a petition for confirmation of the sale of real estate be posted on the property, the notice must be posted in a place where it will be visible from the front of the property and, if the property is a structure, that the notice be visible from outside the structure.
Impact: The party responsible for posting this notice must assure compliance with these new requirements.
5. Probate Rule 10 has been amended by adding new subsection E, which clarifies that in a guardianship or conservatorship, counsel’s role automatically terminates upon the subject person’s death, and by amending the comment to Probate Rule 10 to provide an explanation for the reasoning behind the amendment to Rule 10(E). In extraordinary situations and for good cause, the court may authorize counsel’s continued but limited participation, which must be specified in the court’s order. The comment notes that this rule applies not only to court appointed counsel, but also to counsel of the person’s own choosing.
Impact: In a guardianship or conservatorship, the participation of the attorney representing the subject person automatically terminates upon the subject person’s death. After death, whatever limited participation the person’s attorney may seek must be supported by “good cause”; and the scope and basis of continued participation must be set out in the court’s order that authorizes counsel’s further participation.
6. Rule 17(D) has been amended to provide that a person who files an objection to a petition shall serve a copy upon all interested persons. Service may be in any manner allowed by A.R.S. § 14-1401(A), and the person must file proof of such service with the court.
Impact: The clerks should anticipate receiving proofs of service of objections to petitions.
7. Rule 33 concerning approval of fees for attorneys and fiduciaries, and the applicable portions of the comment to the rule, have been amended. These amendments: clarify that the court may excuse the filing of a fee statement with the court, if appropriate (i.e., a statement is required “unless otherwise ordered by the court”); apply to attorneys representing wards in guardianships, protected persons in conservatorships, or representing fiduciaries, and apply as well as to GALs; require in the fee statement a description of each task that was performed (no “block billing”); allow for alternative methods of charging for costs if the method is explained in the request for reimbursement; and clarify that the filing of an accounting by a fiduciary that includes a request to approve attorney and fiduciary fees paid during that period must be supported with the particularity required by the amended rule.
Impact: Requests for compensation on an hourly basis must show that the date each task was performed, the time expended in performing each task, and the name and position of the person who performed each task. A detailed statement will permit the court to assess the reasonableness of the fee charged for a particular task.
8. Rule 36(A) has been amended and requires that a guardian seeking renewal of his or her authority to consent to mental health treatment must file a motion to that effect “no later than thirty days before the anniversary date of the guardian’s appointment.”
Impact: The former rule required the request to be filed “within” thirty days before the anniversary date. The change to “no later than thirty days” is intended to allow the court adequate time to consider the request prior to the anniversary date, and to avoid requests to extend that are filed right before the expiration of authority.