JANUARY 31, 2000 VOLUME 7, NUMBER 31
Arizona, unlike most other states, has a network of professional guardians and conservators to handle the personal and financial affairs of incapacitated adults (and minors). Most of the time, that network serves the community extremely well. Once again, however, the image of Arizona’s professional fiduciary industry has been blemished by the acts of one individual.
Long-time Phoenix fiduciary Nancy Elliston spent two nights in jail earlier this month, after having been found in contempt of court for paying herself $6,500 from one estate despite court orders not to do so. Her certificate to practice as a private fiduciary had already been suspended by the Arizona Supreme Court in an October 22, 1999, ruling. Now allegations have surfaced that she may have taken thousands of dollars from dozens of cases she managed.
Ms. Elliston’s legal problems are particularly distressing to the private fiduciary community in Arizona. She was one of the first private fiduciaries to enter the profession, and she has been a leader in the practice for over two decades.
Ms. Elliston’s reputation has been as a vigorous advocate for protecting the rights of incapacitated wards. She has also lead the fight to establish ethical standards for private fiduciaries and to provide training and support to permit them to better serve their wards.
No criminal actions have yet been filed against Ms. Elliston, though investigations are underway. The good news: all but one of the cases her firm handled apparently were bonded, so the loss to wards may be minimized.
In recent years state and local prosecutors have initiated criminal actions against several high-profile professional fiduciaries. In Tucson, for example, paralegal Marilyn Summers was convicted of taking money from several of the estates she handled, and she was sent to prison. (Ms. Summers' case was described in Appointment of Conservator May Not Prevent Exploitation. June 1, 1998 Vol. 5, #48) Although Ms. Summers has left the local scene, successors conservators and attorneys are still trying to figure out how much money was taken and how it might be replaced two years after her sentencing.
Phoenix has also seen prosecutions of fiduciaries; in 1993, for example, after an expose in the Phoenix New Times, prominent Phoenix attorney Wayne Legg was charged with assisting conservator Webber Mackey to systematically loot several estates of incapacitated adults. Legg was convicted four years later; Mackey died before trial. (Phoenix Attorney Convicted Of Theft From Estates Of Elderly. August 11, 1997 Vol. 5, #6)
Even relatively rural Kingman, Arizona, has had experience with fiduciary wrongdoing. Mohave County Public Fiduciary (Arizona’s public fiduciaries are county officials, acting in cases where no family or friends take responsibility for incapacitated adults or decedent’s estates) Michael Daw was convicted of taking money from decedent’s estates in 1997; he apparently gambled the proceeds in nearby Nevada casinos. (Mohave Public Fiduciary Pleads Guilty, Faces Certain Jail Time. May 19, 1997 Vol. 4, #46)
Largely in response to the Wayne Legg case, Arizona's legislature established a registration system for professional fiduciaries in 1994, although funding was not provided for the program until 1998. Operated by the Arizona Supreme Court, the fiduciary certification program has now registered over 300 individuals and organizations to act as paid fiduciaries in Arizona conservatorships, guardianships and probates.