Bridget O'Brien Swartz
AZ State Bar No. 016783
Dyer Bregman & Ferris, PLLC
3411 North 5th Ave., Suite 300
Phoenix, AZ 85013
Tel. no. (602) 254-6008
Fax no. (602) 257-4276
Email:
[email protected] COMMENT TO RULE 36(b)(2):
I agree with the other comments concerning RULE 36(b)(2) relative to the Form 10 for Proofs of Restricted Account, that the proposed rule is too restrictive in providing for a mandatory form. I am an attorney who works on a number of substantial settlements of personal injury and wrongful death claims for protected minors and adults. As such, I am interacting with a variety of financial planners and financial institutions. I often experience resistance from financial institutions and brokerage firms to signing a generic form of proof of restriction on accounts. I have been able to work with these companies by "tweaking" the Proof form to satisfy the institution's concerns without compromising the intend of the Court's order to restrict. Sometimes verbiage is removed that is not necessary (such as mention of a minor when the matter concerns an adult) or verbiage is added specifically for that individual institution. On occasion, even more restrictive language is added to mimic an Order because the Proof is often the institution's mains source of documentation on that account. sometimes there are last minute revisions requested by the institution's legal department after an Order is already entered, despite having provided a copy of the Proof form prior to hearing and an Order being entered. These changes are usually so minor (from the probate point of view) that to require obtaining another Order would be a waste of time and money when a simple and non-substantive revision satisfies all involved, including the Court's restriction requirements. For these reason, I would like to see Form 10 as a RECOMMENDED form rather than a mandatory form.
COMMENT TO RULE 45(e)(1):
I am concerned, as are many others, that this proposed rule will not allow sufficient time to accommodate the many parts that go into preparing the Court account forms, including schedules of CPAs that often prepare the forms for institution and non-professional fiduciaries. The result will be filings of many more motions to continue, which is already the case with the current 90 day time allowance. This will interfere then with the approval of a prior accounting before the next one is filed!
COMMENT TO RULE 53:
Finally, I am very pleased with the proposed Rule 53, which provides for an express and formalized recognition and acceptance of the many options to "structure" a settlement for protected persons and also provides more clarity with regards to when a settlement must be approved ty the court.