ENTRUST GUARDIANSHIP SERVICES, LLC
250 N. LITCHFIELD RD., SUITE 115, GOODYEAR, AZ 85395
TELEPHONE: (623) 386-3963
FACSIMILE: (623) 386-2005
DAWN R. WALTERS, LF, NCG [email protected]
September 20, 2011
PUBLIC COMMENTS REGARDING PROPOSED ADMINISTRATIVE RULE CHANGES
Probate Rule 10 D regarding minimization of legal expenses:
I strongly support this provision in its entirety. This should also be a factor that is considered
when making court appointments. Often I have seen family members appointed with the thought
that they were preferable to a paid professional in overall benefit to the estate and client served,
but the end result is that the attorney for the non-professional is charging for activities the
fiduciary would have accomplished at 1/3 to ½ of the cost to the estate, and in addition the non-
professional is employing geriatric care managers and other professionals that would not have
been required had the paid professional been appointed.
Rule 10 E. regarding training:
I strongly support increased training requirements of all parties participating in the probate
practice. Ongoing training should be required for everyone involved in the affairs of vulnerable
adults. This is a complex area of practice and rules are constantly changing and evolving. The
proposed amount and frequency of training is insufficient. Fiduciaries are required to complete
20 hours, including mandatory ethics minimums, every two year renewal period. Court
appointed counsel should have a comparable education requirement.
Rule 10.1 Allowing the fiduciary to file certain documents without an attorney or a document
I strongly support this rule change. This would have an immediate positive impact on estates
served. It would reduce costs not only in attorney’s fees, but also in fiduciary fees reviewing
documents that the fiduciary alone is held accountable for and the fiduciary’s time dealing with
revisions from the attorney to ensure accuracy.
Rule 10(C)(1)(b): I endorse the comments of my colleague Lisa Price:
“Indicates that the fiduciary shall refrain from charging to attend court proceedings unless it is
required by law, court order or other circumstance. I understand the purpose of this provision is
to conserve fees. Unfortunately, I believe it will do the exact opposite. As a licensed fiduciary I am bound by the Arizona Code of Judicial Administration §7- 202(J)(1)(e), which states in part,
“Regardless, the fiduciary alone is ultimately responsible for decisions made on behalf of the
ward, protected person or estate.” As such, I am the only person who could answer questions on
behalf of a particular case. I could provide numerous examples where I have attended a
hearing expecting it to be “routine” only to have someone attend the hearing and object or
have the court have questions that only I could answer. (Emphasis added.) If I were not at the
hearing, the court would then have to reset the hearing which is a waste of judicial resources
and ultimately will increase costs to the ward, protected person or estate.”
Additionally, the guardian “stands in the shoes” of the protected person. The protected person
has the right to attend any hearings pertaining to him or her. The fiduciary is bound by the code
of conduct to “vigorously” defend the rights of the protected person. It has always been held that
if we are required by law to do something, we can and should be entitled to compensation for it. I
believe that restricting the fiduciary from making him- or herself available to the court – or
requiring that this be uncompensated time in order to exercise the ward’s rights - would violate
the spirit of the code of conduct. We are not only attending hearings, but we are meeting with the
parties in the case, exchanging and ensuring accuracy of information before, during, and after
hearings – information that is vital to efficient, effective administration.
Rule 10.2 regarding Sleeth findings:
I believe that this opinion largely underscored what legal remedies were already available. I
support of any clarifying guidance in the rules. It is inherent in the fiduciary’s job and code of
conduct that we are to weigh costs and risks against anticipated benefits. Regarding competitive
bids, there would need to be strict adherence to an all-inclusive process to ensure that there were
no favoritism. Cases should not be awarded on a familiarity system. Competitive bid
requirements should be structured so that there is no opportunity to “low ball” the bid and then
come in significantly over budget every annual accounting.
Regarding competitive bidding, I would request that clarification be added to address the concern
of my colleague, Lisa Price, that this provision could “[open] up a request by the court or an
interested party to request a competitive bid for nursing home costs, in-home care costs or
fiduciary fees. As anyone who has ever dealt with a competitive bidding process can tell you,
rarely is a project completed on time or within the budget. Additionally… simply charging a
lower hourly rate does not mean that your fees will ultimately be less than another service
provider as the practices of the office determine the fee much more so than the hourly rate.”
Rule 15.1 regarding guardians ad litem:
Regarding section “B”, the “reasons for and duration of appointment” should also include a
recommendation that, barring good cause, the guardian ad litem should be discharged upon the
appointment of a permanent guardian/fiduciary. This is a redundant role as the guardian is
responsible for advocating the protected person’s best interest before the court.
Rule 15.2 (D) is in need of revision for general readability and clarity of intent. The way it’s
written, it sounds as if we need to be taking “action” or having a hearing every six months; on a
routine, established matter we are often in court only annually or not at all (nonappearance
hearings). It should be revised to clarify that this means that if no hearing on the appointment of
a fiduciary occurs “within six months from the date a case is initiated by filing an initial petition
for appointment” or something to that effect, as I assume this is the intent. If my assumption is
incorrect and we need to be taking “action” or having a hearing every six months in a probate
matter, this would be wasteful and unnecessary.
Rule 19 (C): I am in 100% support of this provision. I believe this practice represents a
professional conflict of interest and should not be permitted.
Rule 22 (D)(2): I do not understand the intent of restricting the fiduciary’s ability to lease real
estate owned by the estate for more than one year. Negotiating a long lease to ensure long-term
cash flow may be advantageous to the estate and should be left up to the fiduciary’s discretion
with approval of the court. I recommend striking the “leased for more than one year” clause from
this rule. The statutes cannot anticipate individual circumstances and the court should be allowed
discretion in determining what makes sense for the estate.
Rule 26 (E): The timeframe for recording letters “in all counties where the estate owns real
property” within 30 days is unreasonably short or should be restricted to “where it can
reasonably determined that the estate owns real property”. There are times in which we don’t
even know real property is owned by an estate until the annual tax notice is sent. In spite of due
diligence searches, property can be owned in former names that we aren’t aware of or there are
misspellings or errors in the public record that inhibit discovery and marshaling. Additionally, it
should clarify that it is not a violation if the state in which the county is situated does not record
foreign letters of appointment or outline what steps must be taken if that is the case, because this
has been a situation I have encountered at least once in practice.
Rule 26.1: I support this procedure as it ensures that there is transparency in the appointment
Rule 27.1: I strongly support training requirements of all parties involved in the process,
especially in cases in which the court is passing over a licensed, trained professional in favor of
someone with no experience in the probate arena which, as outlined above, often sharply
increases costs and risks to the protected person while attempting to avoid the same.
Rule 29.2: I strongly support this proposal. I would encourage fiduciaries to cooperate with
parties to the fullest degree, but we have all had cases where we are responding to redundant
requests and attempts to re-open disputes regarding matters that have been settled, explained, etc.
with damage to the protected estate resulting.
Rule 30 (C) (1): The courts have been inconsistent in requirements for submission of annual
guardian reports. There should be consistency. However, the cases that were initiated before this
rule goes into effect should be exempt from any new calendaring requirements, to cut down on
administrative costs required in reviewing files and implementing new filing deadlines. I have
cases on which I am ordered to submit an annual report of guardian that covers a 9-month period,
but that is to be filed three months later than the reporting period. This seems contrary to the
purpose of an annual report of guardian. Cases can change rapidly and circumstances can change
in a 3-month period. The annual report of guardian should summarize the prior year and provide
a current status of the ward. The requirement should be that the report be submitted on or before
the anniversary date and should provide the current status of the ward as of the date of
preparation of the report, not to exceed 1 month prior to the date of filing.
Rule 30 (D) (4) “Version 2 – Triage Program B”: If the investigator finds an increased risk with
a proposed appointee, that could be good cause for appointing an alternative person with lower
priority; therefore, why should it be inadmissible in evidence? Risk may be lowered and
monitoring unnecessary with an alternative appointee. I recommend striking this provision.
Rule 30.1 (A): Medical costs, including costs of long term care, are generally the highest costs to
the estate. Excluding them, with the other expenses being limited to what “can be reasonably
known” makes estimates highly subjective and potentially misleading and ineffective, opening
the door to objections. Additionally, most costs cannot be known prior to appointment. I
recommend requiring “good faith estimates” be required not of the petitioner, but rather of the
conservator the time of filing the conservator’s initial inventory, within 90 days of appointment,
and not with the initial petition. The petitioner is in no legal position to know or discover this
information. Additonally, I recommend changing the wording “shall be incurred by a
conservator” to “shall be incurred by the protected person’s estate”.
Rule 30.2 (B): Recommended revision:
“After a GUARDIAN AND/OR conservator AND/OR A GUARDIAN AD LITEM is appointed
Rule 30.3 Regarding estimated lifespans: Appointees in probate matters are not qualified, nor are
they required by law or standards of practice to be qualified, in estimating life expectancy. If this
is a consideration imposed on appointees, there should be a prescribed manner of making such a
determination that does not require the appointee’s own knowledge or expertise. I recommend
rather that any requirements to calculate and estimate lifespan be stricken from this proposal. It is
also not clear in section (A) when the conservator shall make the required disclosure if a
conservatorship is not sustainable; a timeframe should be included.
Rule 30.4 (D): I see this as potentially a very costly requirement. A ten percent or two thousand
dollar variation may cost much more in attorneys and hearing times than the actual variation in
budget. I recommend either striking this requirement or, in the alternative, making the triggering
budget variation amount or percentage significantly higher than $2000 or 10%. The real-life
scenarios outlined by my colleague are accurate:
“If I have a client who is in assisted living, had a fall and breaks her hip and requires placement
in a skilled nursing facility that is going to cause an increase in the budget by more than ten
percent or two thousand dollars. Will that make a difference in how I manage the case? Of
course not as the best interest of the ward/protected person is what take precedent. Or what if
the air conditioning unit goes out on the home owned and lived in by my client. I have only
estimated $2,000 for the year for household expenses and now I must expend $5,000 for a new
air conditioning unit. How is it beneficial to the ward/protected person for me to update the
budget and for my attorney to file that with the court and notice all parties? A $5,000 air
conditioning unit now just cost the ward/protected person $6,000 due to the additional
administrative expenses.” – Lisa Price
In general, I support any clarification on what fees can be reasonably charged and what factors
can and should be considered by the court in determining reasonableness of fees and responding
to objections regarding fees.
Proposed rule 3 (“Points of Refernce”):
#1: Four hours per month is an unreasonably low point of reference for a complex matter/large
estate with complex assets. I have seen complex brokerage account statements that take 1-2
hours each to reconcile.
#3: The Fiduciary Code of Conduct mandates that a licensed fiduciary serving as guardian visit
the ward “as often as is necessary to uphold the ward’s best interest.” There have been many
situations in my years in practice which intensive hands-on advocacy and meetings with the
protected person and his or her family, caregivers, friends, etc. were required weekly or even
daily until a situation was resolved. The fiduciary should not be constrained from visiting,
charging professional fees for visits, or ordered to disgorge fees for conducting visits in
complying with the code of conduct and/or upholding the ward’s best interest. I recommend
striking section #3 in its entirety.
#4: Five hours per year is an unreasonably low guideline for a complex matter, especially if the
fiduciary is required to revise the budget and appear in court every time the budget varies by
10% or $2000. I would double this to ten hours.
#5: Two hours per year to request a physicians’ report, review a year’s worth of documentation,
and prepare an extensive report to the court is unreasonably low as a guideline. I would double
this to four hours.
#9: The factors that would trigger this provision can be entirely outside of the control of the
fiduciary. Fiduciaries are not qualified or trained, nor do they have any expertise that would
equip them to accurately anticipate the lifespan of the protected person. I recommend rewording
this to read “IF IT CAN BE REASONABLY DETERMINED THAT the total amount of all
annual expenditures, including reasonable professional fees MAY DEPLETE THE ESTATE,
THE CONSERVATOR SHALL DISCLOSE WHETHER the conservatorship has an alternative
Section 4 (F): Again, I will endorse the comments of my colleague:
“regarding the delegation of duties to another individual. I agree that all fiduciaries (and
attorneys) should delegate tasks to other staff whenever possible to conserve fees. … as licensed
fiduciaries our Code of Conduct contained in Arizona Code of Judicial Administration §7-202
limits our ability to delegate a number of tasks to non-licensed staff. Additionally, while not
explicitly written in the ACJA, many fiduciaries have reported findings on audits when they
delegate tasks to non-licensed staff.
Recommendation: The best way to handle fee disputes is to simply use the findings of Sleeth v.
Sleeth, all of which are currently contained in statute, rule or case law and were simply
consolidated into one case.”
Regarding Proposed Mandatory Forms: Most of these forms apply to conservators, while my
practice with regard to court-appointed matters is limited to guardianship. However, the
consistent feedback I have received from my colleagues and attorneys involved in
conservatorship matters is that the time expended completing the forms will result in significant
increase in fees to the protected person’s estate. While they are intended to increase
transparency, most of them seem overly complex such that they will not achieve the intended
result of giving a thumbnail sketch to parties and the court, and instead will lead to increased
time expended on the part of all parties in both reviewing and completing the forms.
One particular comment I have on forms is to make an analogy to the previously adopted “Order
to Guardian”. This form effective January 1, 2009, for the first time ever required that guardians
of incapacitated adults obtain “certified” letters of guardian. There is no practical reason to
expend $26 to obtain certified letters of guardian and this requirement has resulted in what I
believe to be unnecessary costs of administration. While the conservator has good reasons in
practice to be required to obtain certified letters, I have never encountered a medical provider
who required anything more than a conformed copy. I recommend careful re-consideration of all
forms and a cost-benefit analysis of each one before final implementation. Just as there is no
direct benefit to my wards from having a $26 set of letters in my file, there may not be any direct
benefit to the estate from requiring a fiduciary to spend dozens of hours filling out complicated
new forms that are incomprehensible to the majority of parties entitled to notice.
Thank you for your consideration of my comments and for all of the efforts to improve the
probate process so that it more effectively and efficiently protects the individuals it is charged