Posts Tagged ‘private fiduciaries’

Private Fiduciary Appointed Because Of Family Fight


When Rose Kelly died in Phoenix in 1993, she left behind five children and her husband of many years, Francis. Mrs. Kelly had taken care of Mr. Kelly for several years prior to her death; his advancing confusion and memory loss made it difficult for him to take care of his own personal or financial affairs.

In the course of settling Mrs. Kelly’s estate, her children learned that Mr. Kelly’s Will left his home to a favored grandson (Jeffrey), who had been actively involved in Mr. and Mrs. Kelly’s life for his entire adult life. Jeffrey’s mother Connie (one of Mr. Kelly’s four daughters) had also been actively involved, having lunch with her father at least six days a week.

Upon learning of the Will, Mr. Kelly’s son Donald took Mr. Kelly to a lawyer in Phoenix to prepare a new Will. The result: Jeffrey’s bequest was deleted, and Mr. Kelly named Donald as agent under a durable power of attorney. Over the next few weeks, Donald changed all his accounts (over $400,000 in assets) into joint tenancy between Mr. Kelly and Donald.

Relationships among the Kellys deteriorated rapidly, and a family meeting was called to try to resolve differences. The gathering broke up abruptly when Mr. Kelly threatened Connie and Jeffrey. Soon after, another daughter (Joyce, who had been estranged from Mr. Kelly for years) moved in to take care of him, and Connie and Jeffrey found that they could not visit their father and grandfather without suffering verbal threats and abuse.

Believing that part of the problem was the control of Mr. Kelly by other family members, Connie filed a petition to be appointed as conservator and (later) guardian. Donald and Joyce countered that Donald should be appointed.

At the hearing, Connie’s attorney produced a multi-disciplinary evaluation by two physicians, a psychologist and a social worker. Their conclusion was that Mr. Kelly needed both a guardian and conservator, and that the best hope for Mr. Kelly would be appointment of an independent fiduciary.

The court-appointed investigator agreed, writing that “the only way I can see to diminish the conflict and aggressiveness of the family is to remove them one step from the decision-making process.” Judge Skelly appointed Nancy Elliston, a Phoenix private fiduciary, as both guardian and conservator. (Ed. note–completely unrelated to the situation with the Kelly family, Nancy Elliston subsequently developed her own legal problems. See Phoenix Leader In Private Fiduciary Industry Goes To Jail, the January 31, 2000, Elder Law Issues)

Donald and Joyce appealed the appointment of Elliston as guardian (they had agreed that she could be appointed conservator). They contended that their own expert disagreed with the multi-disciplinary evaluation, and that family members should have priority over strangers. Joyce, Elliston and Mr. Kelly’s attorney all disagreed.

The Arizona Court of Appeals determined that, even though one expert did not feel the guardianship was necessary, the trial court could choose to believe the multi-disciplinary evaluation instead. The Court also upheld the appointment of Elliston. Arizona law establishes a priority list for appointment of guardians, with family members near the top and professional fiduciaries at the bottom. However, the law permits the trial court to ignore the priority list if the “best interest” of the ward requires appointment of someone else. In this case, said the Court of Appeals, the trial judge properly determined that family members were unlikely to act in Mr. Kelly’s best interest. Quoting from an earlier case from Iowa, the Court noted that “from time to time wards need more protection from kin than from strangers.” Kelly v. Elliston, Arizona Court of Appeals, Division One, January 25, 1996.

Unfortunately, the Kelly family feud is all too common an occurrence. Private fiduciaries exist (and thrive) precisely because of such family difficulties.

Arizonan Wins Award


Each year at the Joint Conference on Law and Aging in Washington, D.C., the Friends of Legal Services to Older Persons announces the winner of the prestigious Paul Lichterman Award. At the seventh annual Joint Conference last weekend, an Arizonan received the honor.

Anita O’Riordan, the Director of Elder Affairs of the Arizona Attorney General’s Office, was recognized for her work on behalf of the victims of elder abuse. In particular, O’Riordan was singled out for her efforts to bring together doctors, lawyers, social workers, government administrators, police officers and victims’ family members to combat and prevent abuse.

O’Riordan has worked in the Attorney General’s Office for eight years. During that time, she and the office have been instrumental in securing a number of legislative changes, including creation of a registry of perpetrators of elder abuse, revision of guardianship and conservatorship laws and (in the recent legislative session) registration of private fiduciaries.

The Lichterman Award itself honors one of the national leaders in elder law.

Even before “elder law” was a recognized term, Paul Lichterman was nationally known for his advocacy of the legal rights of older Americans. Lichterman died tragically and at a young age; the Award was established in 1986.

Alzheimer’s Is/Is Not

From Legal Briefs comes a succinct summary of Alzheimer’s disease.

“Alzheimer’s disease is not:

  • a natural part of aging
  • easily diagnosed
  • limited to the elderly
  • currently curable
  • covered by most government or most private health insurance

Alzheimer disease is:

  • a progressive, dementing, irreversible disease that attacks the brain
  • the fourth leading cause of death among adults in the United States
  • the cause of more than 100,000 deaths annually
  • a disease which knows no social or economic boundaries: it is found in all segments of the population
  • an emotional and financial nightmare for victims and their families”

Elderly Cultists?

Recent reports indicate that the elderly are increasingly likely to become involved in cult activity. The Older Americans Report newsletter asserts that cults are focusing more effort on nursing facilities, hospitals and senior centers. Estranged and/or lonely elderly residents may respond to the visits and friendship offered by cult recruiters.

Legislative Changes

JUNE 27, 1994 VOLUME 1, NUMBER 31

The 1994 session of the Arizona legislature ended in mid-April. Most of the new laws adopted during that session will become effective in about three weeks, and newspaper articles about those changes should begin appearing soon.

Several new laws are of particular importance to the elderly and disabled. The changes include:

Private Fiduciaries
Senate Bill 1103 directed the Arizona Supreme Court to develop a system for registration and regulation of private fiduciaries. Any person or organization serving as guardian, conservator or personal representative of a person or estate, unless related to the ward or decedent, must meet the Supreme Court’s standards.

In response to the new law, the Supreme Court has established a committee to draw up minimum standards, disciplinary rules and other regulatory provisions. It is unlikely that the rules will be ready by July 16 (the next meeting of the Committee is set for August 1), but some protection will be provided for incapacitated adults, children with substantial estates and heirs in the near future.

Pima County representatives on the Supreme Court committee include Robert Fleming, Hon. William Sherrill (the presiding Pima County probate judge) and Eleanor terHorst (the Court’s Probate Law Counsel). Any of the three would be happy to hear from concerned citizens, particularly those with first-hand knowledge of abuses and concerns with private fiduciaries in the past, or with suggestions for protective regulations.

Age Discrimination Cap Removed
Senate Bill 1226 removes the present cap of age 70 from Arizona’s Age Discrimination in Employment Act. Older employees are now protected from discrimination under the law.

Investment Advisors
After particularly complicated legislative wrangling, House Bill 2271 passed both houses and was signed by the Governor. This legislation creates a regulatory structure for investment advisors, requiring them to register with the Arizona Corporation Commission. Minimum qualifications were also established, and a mechanism to report abuses and suspend advisors from practice.

Respite Care
House Bill 2317 created a pilot project to provide respite care for the frail elderly. The primary focus of this legislation is on attempting to show whether respite care permits caregivers to function in their home-care roles for a longer period. Only $75,000 was allocated, and the pilot project was limited to Maricopa County, but it may signal an acknowledgement on the part of legislators that respite care is an important issue for the future, and perhaps a willingness to expand such a program.

State Retirement COLAs
Senate Bill 1058 introduced the concept of an automatic (or perhaps semi-automatic) cost of living adjustment to the Arizona State Retirement System. COLAs will be limited to half the increase in the Consumer Price Index (or 3%, whichever is less) and will only be available in years when funds are available (according to a formula adopted as part of the law). The COLA legislation automatically ends in five years.

©2021 Fleming & Curti, PLC