Posts Tagged ‘Public Fiduciary’

Public Fiduciary Offices in Arizona

When an individual living in Arizona becomes incapacitated, or needs financial protection because of diminishing capacity, a family member, friend or private professional fiduciary might be appointed to act as guardian (of the person) or conservator (of the estate). But what if there is no one available to act, or if all the possible candidates are disqualified for some reason?

For over four decades Arizona counties have had a public official who can act as guardian and/or conservator when no one else is available. The Public Fiduciary is designated in each county by the Board of Supervisors, and runs an office (and staff) funded by the county. In addition to guardianship and conservatorship, the office also handles probate of decedent’s estates when no one else can be appointed.

A handful of other states have similar offices, though most handle guardianship only, conservatorship only, or probate only. Many states have similar agencies that can act as guardian or conservator for particular groups of people — typically veterans, or the developmentally disabled. Arizona’s unique experiment was to group all those functions together into one office, and to call it the Public Fiduciary.

Does that mean that Arizona’s Public Fiduciary offices are an inexpensive alternative for poor families who don’t want to incur the costs of initiating guardianship, conservatorship or probate? No. Public Fiduciary offices do not represent families — they file petitions for the office’s own appointment instead of appointment of family members. They also charge fees, meaning that they may or may not be less expensive than private fiduciaries and lawyers representing family members. Most importantly, they will not act when there are suitable family members available.

Arizona’s Public Fiduciary offices have been a very positive success (though there have been individual incidents of abuse by at least two different Public Fiduciaries). Generally speaking, the offices act when estates are small, legal problems are substantial, and/or family members have misbehaved. But there are no formal limitations on the kinds of cases the Public Fiduciary can get involved with, and (though the experience is different in each county) public fiduciaries tend to be the most experienced, most knowledgeable resource for guardianship, conservatorship and probate problems in most counties.

You can read more at the website of the Pima County Public Fiduciary (that’s the county in which all of Tucson is located). There is a separate — but usually similarly-run — office in each Arizona county. Note that, at least in Tucson, the office also handles other, related functions — chief among those is management of the county burial system for indigent decedents or those who die without locatable family.

We last wrote specifically about the Pima County Public Fiduciary in (and this amazes even us) 1994. To put that in context: the office is now more than twice as old as when we last highlighted them. A considerable amount has changed since that time: for one thing, the current Pima County Public Fiduciary (well, the Interim Public Fiduciary, anyway) is the first non-lawyer to hold the office in its 42-year history. Peter Santini has been a core staff member for two decades, and is a logical choice to handle that role. His predecessor retired recently, and the County is in the process of making a permanent selection.

One thing hasn’t really changed in over twenty years. You can still make a referral to the Pima County Public Fiduciary by calling their office and talking with an intake person on staff. Their phone number: 520-724-5454.  Remember, though, that they only handle Pima County cases; there’s no point in contacting them about Public Fiduciary matters in any of Arizona’s other 13 counties, or for similar cases in other jurisdictions.

If you thought about it a minute, you’d probably guess that the availability of an office like the Public Fiduciary would mean that there are fewer private-industry alternatives for similar work in Arizona. In fact, though, the experience is exactly the opposite. Despite a robust and effective Public Fiduciary system in Arizona, the private fiduciary industry is much more extensive, better-regulated and more professional than in many other states. That may be partly a result of good training — a large portion of the private fiduciary industry learned how to handle guardianships, conservatorships and probates while working in their local Public Fiduciary offices.

Arizona Probate Court Changes Coming in 2012

It is not exactly a secret that the Arizona probate court system has been widely criticized over the past two years or so. The Phoenix-area newspapers have been filled with stories about alleged abuses of the probate process. Many of those stories have focused on practices in the guardianship and conservatorship systems, which in Arizona are controlled by the probate courts. During last year’s Arizona legislative session a number of changes were adopted; most of those take effect on January 1, 2012.

At the same time the legislature was acting, a committee of the Arizona Supreme Court was considering many of the same (or similar) changes. The courts have now released their final changes; some of them will take effect on February 1, 2012, and some on September 1, 2012. We will describe some of those changes, and what effect they are likely to have on existing and future clients, in a later newsletter. For now, we focus on the changes adopted by the legislature. They include:

  1. Fiduciaries are now expressly required to consider costs when making decisions about how to act, and to make reasonable decisions to limit those costs. The notion of a cost/benefit analysis, which we all apply to business and personal decisions in our own lives, has been adopted for guardianship, conservatorship, probate and trust administration proceedings. See Arizona Revised Statutes section 14-1104.
  2. Unreasonable litigants — including those who repeatedly file the same kinds of pleadings despite successive decisions against them — can now be prevented from running up probate costs, and can even be charged with some or all of the costs they do incur. The probate court has the express power to prohibit further court filings by an unreasonable party, and to summarily deny repetitive motions without requiring others to answer or argue. See Arizona Revised Statutes sections 14-1105 and 14-1109. The court rules which become effective a month later, incidentally, include a concept of “vexatious conduct” that is similar but somewhat more expansive.
  3. Arbitration of probate disputes is encouraged — but not (yet) required. Mediation and other forms of alternative dispute resolution are also permitted. See Arizona Revised Statutes section 14-1108.
  4. Guardians, conservators and attorneys must now provide written information about their fees — how they are going to be calculated and at what rate or rates — at the beginning of their involvement. Failure to do so will mean that they are not permitted to collect fees from the ward in a guardianship or conservatorship proceeding. The probate court has been given wider latitude to determine when a professional fee is reasonable and necessary. See Arizona Revised Statutes section 14-5109. Another fee-related change: attorneys are not permitted to wait until the conclusion of a case (or some later event) to submit their bills. Any bills not submitted within four months of the services are waived. See Arizona Revised Statutes section 14-5110.
  5. It should be easier for the subject of a guardianship or conservatorship — or his or her family — to seek appointment of a new guardian and/or conservator. This change reflects the legislature’s concern that even when family members are unable (or unsuitable) to serve, they should have some say in selecting the fiduciary. There are limits on how often the ward and family members may ask for changes, and the court retains the final say on any substitution, but the statutory changes will probably lead to more changes of fiduciary, at least in contentious cases. See Arizona Revised Statutes sections 14-5307 and 14-5415. The notion that family members — even family members who can not themselves serve — should have a greater say in selecting and monitoring guardians and conservators is sprinkled through other sections of the new law.
  6. Although most of the new law deals with guardianship and conservatorship changes, there are a few changes in probate proceedings and at least one in trust administration matters. The principal change for trusts: the beneficiary of a trust has the ability to direct appointment of a new trustee — at least if the trust was originally established by the beneficiary. See Arizona Revised Statutes section 14-10706. This section will not apply — at least not directly — to trusts established by someone else for the benefit of the beneficiary. It will apply to self-settled special needs trusts and other irrevocable trusts established by the beneficiary.

What effect will the statutory changes have on guardianship and conservatorship practice? It is hard to be certain until there is more experience. A few likely effects, including some that might be categorized as unintended consequences:

  • The cost of probate court proceedings is likely to go up in most cases. This is a paradox, since one of the original motivations behind the changes was to control costs, and especially legal fees. In some very expensive cases in recent years, that might well be the effect. In the vast majority of cases, however, increased requirements and a higher burden on fiduciaries and their attorneys will likely result in at least a small increase in costs.
  • There are likely to be fewer private fiduciaries willing to get involved in difficult or contentious cases. That, in turn, is likely to mean an increase in caseloads for the Public Fiduciary in each county. Not only will the Public Fiduciary see an increase in cases, but it is likely that the complexity of the average Public Fiduciary case will increase.
  • Some private professional fiduciaries may leave the field, or change their practices significantly. We predict (on the basis of no empirical data whatsoever) that another paradox is likely to be an increase in the number of licensed fiduciaries — and that both the average case load and the professional training and experience of private fiduciaries may well be lower in future years.

On January 18, 2012, Fleming & Curti, PLC, will host a training session for our clients who act as guardian, conservator or personal representative. We will invite fiduciaries who are not our clients, as well. Those in attendance will likely include both family members handling a single case and professional fiduciaries with large and complicated case loads; both kinds of fiduciary will need to know what the changes mean for them. We will cover both these legislative changes and the Supreme Court’s changes in rules and accounting requirements (and forms). If you are interested, you can pre-register by calling Yvette in our office (520-622-0400) and leaving your name and e-mail address. We will be sending out formal invitations in the upcoming week.

Arizona Legislature Adopts Probate Changes

APRIL 25, 2011 VOLUME 18 NUMBER 15
Last week the Arizona Legislature adjourned for the year. Just before closing down the session legislators adopted a number of new measures dealing with probate court, trusts and especially guardianship and conservatorship matters. Most of the bills passed by the legislature are still awaiting the Governor’s signature, but all are expected to be signed and to become law on July 20, 2011 (except that at least one of the new laws will be delayed until December 31, 2011). Among the ones affecting our clients:

House Bill 2211. This new law clarifies that some guardians have the power to admit their wards to inpatient mental health treatment. That authority has long existed, but has been difficult to actually implement. The new law aims to make it easier for guardians, and to clarify that the guardian also has the authority to consent to continuing medical treatment during and after admission. As was the case before the new law, this kind of authority requires a special court proceeding at the time of the guardianship hearing (or later, if mental health issues arise), and the mental health authority has to be renewed every year.

House Bill 2402. Two apparently unrelated issues are addressed in this new bill. First, the legislature has created a procedure for suspension of the driving privileges for someone who has had a guardian appointed. Second, this new law inserts a relatively simple way of appointing a guardian and/or conservator — at least initially — for the subject of a civil commitment proceeding. Under prior law both issues were unclear, leading to the oddity that the judge who heard extensive testimony about a patient’s mental illness and need for a guardian and/or conservator could do nothing about that need. Similarly, the ability of the court to suspend a ward’s right to drive had been uncertain, though prior law implied that the court might have that power.

House Bill 2403. Arizona’s legislature adopted the Arizona Trust Code (a version of the Uniform Trust Code), after a couple of false starts, three years ago. Each year since then the legislature has been asked to tinker with the provisions, and it has consistently agreed. This year’s technical corrections are mostly minor, and hard to work up much excitement about — but they are improvements.

House Bill 2424. Though this bill started life as a comprehensive revision of guardianship and conservatorship, it concluded its legislative odyssey as a stripped-down version. As adopted, it simply creates a Probate Advisory Panel to address needed improvements in the guardianship and conservatorship process. The Panel will include two guardians (of a child or sibling), two conservators (of a parent), one public fiduciary, one private fiduciary, one attorney, one judge and a clerk of court.

Senate Bill 1081. Arizona has long allowed you to name a guardian for your minor children in your will, and to let that person be appointed in a summary proceeding if no one objects. This new law permits a similar proceeding for your incapacitated spouse or adult child. The bill spells out a mechanism for lodging the nomination after your death, and requires notice to the allegedly incapacitated spouse or child. If they do not object, the guardianship can issue automatically.

Senate Bill 1499. This new legislation is the most far-reaching of the bills listed here. It was adopted in response to a series of articles in Phoenix-area newspapers about alleged abuses and huge fees in guardianship and conservatorship proceedings. Of the bills listed here, this is the only one which does not become effective on July 20 — it takes effect on December 31, 2011, to give practitioners some time to figure out what changes will need to be made. Among the provisions of Senate Bill 1499:

  • Several changes attempt to address abuse of the legal process. Arbitration is encouraged and can be required. Repetitive filings can be sanctioned. In general terms, the losing party in a contested proceeding can be assessed costs and attorneys fees to be paid to the ward or estate.
  • Any guardian, conservator, or attorney who intends to seek payment from the ward’s estate will need to provide a description of how the fee will be calculated. That information must be provided with the first filing in the proceeding. Any billing must be given to the conservator within four months of the work being done or the fees will be deemed waived.
  • Wards will now have the right to request a new guardian or conservator, and the court must approve the change if it is in the ward’s best interest. A change of guardian or conservator does not require a finding that the current fiduciary has done anything wrong — this provision permits the change based on the ward’s wishes rather than misbehavior of the fiduciary. Any other interested person (a family member, for instance) may also request the change, with the same result.
  • The ward’s right to name his or her own choice of guardian and/or conservator is strengthened. The person named in a power of attorney, for instance, should ordinarily be one of the highest-priority candidates for appointment, unless there is evidence that that person has acted inappropriately.
  • As before, a conservator must file an inventory of the protected person’s assets. Now the conservator must attach a consumer credit report to that inventory.
  • The subject of a conservatorship and other interested persons can now request that the conservator let them review financial and billing records as often as monthly.

In addition, Senate Bill 1499 makes a number of other, less significant, changes. Fiduciaries and their attorneys, and anyone involved in a contested guardianship or conservatorship proceeding, needs to review the new law to see how it will affect new and existing proceedings, and what changes need to be made in reporting and practices.

Ward Has Burden of Proving That Guardianship Should End


In 1999 the Platte County, Missouri, courts appointed a guardian of the person and conservator of the estate for Linda Werner. Because of her schizophrenia and her resulting difficulty in making responsible decisions the court decided that Janet Waddell, the county’s “public administrator,” should handle Ms. Werner’s personal and financial affairs. By 2002, however, Ms. Werner was doing much better, and she thought it was time to terminate the legal proceedings.

When Ms. Werner asked the court to end the guardianship and conservatorship, the public administrator agreed—partially. Ms. Waddell indicated that she agreed Ms. Werner could handle her own finances. She also agreed that Ms. Werner had improved enough that she should be allowed to vote, and to drive a vehicle. She disagreed, however, with terminating the guardianship altogether.

The Platte County court heard testimony from friends and acquaintances of Ms. Werner, and from a new doctor who had been treating Ms. Werner. The second physician diagnosed her as suffering from depression, rather than the schizophrenia diagnosed at her first hearing by her original doctor.

Several of the witnesses agreed Ms. Werner was doing much better at providing for herself than had been the case at the original hearing. The judge agreed that she should be permitted to take back control of her own finances and that she should be allowed to vote and drive, but continued the appointment of a guardian for all other purposes.

Ms. Werner appealed, arguing that there had been no evidence at the court hearing that she still needed a guardian. The Missouri Court of Appeals upheld the continuation of her guardianship because, said the court, the issue was not whether there was evidence of a continuing need for guardianship—it was whether Ms. Werner had produced sufficient evidence that the guardianship should be terminated.

Because the hearing was on Ms. Werner’s petition to end the guardianship, said the appellate court, she had the burden of proving her case. Although she produced evidence supporting her position, the evidence was not uncontradicted, and the trial judge may have simply not been persuaded. Even if her new physician’s diagnosis of depression was correct, that did not prove that she would continue to do well without a guardian. Ms. Werner’s guardianship continues, though limited. Estate of Werner, February 3, 2004.

Ms. Werner’s case is interesting to Arizona guardianship practitioners for several reasons. In addition to addressing the burden of proof issue, it also introduces the Missouri office of “public administrator,” which is roughly equivalent to Arizona’s “public fiduciary.”

Déjà Vu: Another AZ Public Fiduciary Charged In Thefts

MAY 14, 2001 VOLUME 8, NUMBER 46

In 1997 a rural Arizona county Public Fiduciary stunned the state’s advocacy community when he acknowledged taking hundreds of thousands of dollars from his ward’s estates (“Mohave Public Fiduciary Pleads Guilty, Faces Certain Jail Time“). Thefts by private fiduciaries (and lawyers representing fiduciaries) are all too common, but everyone blithely assumed that public officials would be more closely monitored, and unlikely to steal.

Now an Arizona Auditor General’s report charges that another Public Fiduciary methodically stole from her wards’ estates. This time the subject of investigation is Rita Riell-Corbin, who served as Gila County Public Fiduciary until December, 1999.

According to the Auditor General’s report Ms. Riell-Corbin began taking money from estates entrusted to her as early as 1994. Over the next six years she converted at least $1,177,884 to her own benefit, the report charges.

Ms. Riell-Corbin was the Public Fiduciary in rural Gila County (county seat Globe, Arizona) from 1986 until her removal from the position. She oversaw a staff of 4 other employees and managed a caseload of something less than 100 wards and decedents. Her financial misdeeds affected at least 40 of her wards. Not surprisingly, she targeted those cases in which there were no family members likely to challenge her expenditures. In some of the decedent’s estates she took money that would otherwise have gone to one of her living wards.

During the six-year period investigated by the Auditor General’s office Ms. Riell-Corbin used her wards’ money to pay for improvement of homes she owned, for her own insurance and telephone bills, and to make monthly payments on credit cards used extensively for personal and family purposes. She personally wrote checks for those types of expenditures in excess of $750,000.

The Auditor General’s report charges that Ms. Riell-Corbin is not the only person culpable in this latest fiduciary abuse. County officials supervising the Public Fiduciary’s office, the attorney representing the office, and the Superior Court (which must approve all fiduciary accountings) also breached their fiduciary duties, according to the report. The report alleges that all “failed to act when they knew, or should have known, of the Public Fiduciary’s improper activities.”

Ms. Riell-Corbin has been charged with eight counts of theft, fraudulent schemes, misuse of public money, conflict of interest and perjury. Those charges were finally leveled April 26, 2001, sixteen months after her schemes were first discovered. Sorting through bank records and reviewing account information (Ms. Riell-Corbin apparently routinely destroyed copies of checks issued for her own and her family’s benefit) was a massive and complicated undertaking, substantially slowing the investigation.

The Auditor General’s report is available online at the office’s website at Look for its “Investigative Report: Theft and Misuse of Public Monies by the Gila County Public Fiduciary.”

Guardianship Fees Deducted From Patient’s “Share of Cost”


Mary Perry was admitted to a Massachusetts hospital in 1991. After treatment was completed, the hospital sought her discharge to a nursing home that November. Unfortunately, Ms. Perry lacked both capacity and resources.

The Massachusetts court appointed a guardian to make placement decisions for her, and she was promptly placed in an appropriate nursing home. A Medicaid application was completed, and Ms. Perry qualified for government assistance with her nursing home expenses.

Once Ms. Perry’s care was arranged and eligibility obtained, the Medicaid agency turned to the question of how much Ms. Perry would need to contribute (from her monthly Social Security check) toward her care. Ms. Perry’s “share of cost” was calculated, and payments began.

Meanwhile, Ms. Perry’s guardian sought approval of the fees and costs incurred in securing the guardianship, making (and implementing) the placement decisions and applying for Medicaid coverage. The Massachusetts court approved the guardian’s fees, and ordered that payments could be made from her monthly Social Security check.

Unfortunately, Ms. Perry’s personal needs allowance (the state Medicaid program was leaving her only a small amount each month) was insufficient to both provide for her personal needs and pay the accumulated guardianship fees. Ms. Perry’s guardian therefore applied for a reduction in the “share of cost” amount to permit the guardian’s fees to be paid. In support, the guardian argued that the fees were required to obtain medical care, and that medical expenses may be deducted from the share of cost amount.

Massachusetts’ Medicaid agency denied the request, citing HCFA (Health Care Financing Administration) regulations categorizing guardianship expenses as not related to medical costs. The guardian appealed to the state courts.

The Massachusetts judge has now ruled that guardianship costs are “necessary medical expenses” when they are required to obtain consent to medical treatment. Under the law of informed consent, Ms. Perry’s treatment could not be undertaken without approval from a surrogate; since she had made no provision for surrogates herself (such as by executing a power of attorney for health care), the guardianship was required before treatment decisions could be made. Perry v. Bullen, Mass. Super. Ct., May 31, 1996.

Arizona law is similar to Massachusetts’ provisions, and a similar result might be expected. ALTCS regulations provide that the share of cost may be reduced by a “noncovered medical or remedial expense” incurred during the three months before application, but then makes a list of allowable expenses. Not surprisingly, guardianship (or legal) fees are not included. ALTCS does permit “other non-covered medically necessary services which the member petitions AHCCCS for and which the Director approves,” (ALTCS Eligibility Policy and Procedure Manual §1016.2.C.2.b.vii) but it seems unlikely that would quickly concede the point.

Nonetheless, guardianship may legitimately be required before nursing home placement can be secured and an ALTCS application completed. How can these expenses be paid if the ward has no assets? One obvious choice is to make a referral to the Public Fiduciary’s office, but if family are actively involved they may be instructed to initiate their own proceeding. If family members are reluctant (or have insufficient resources to pay for the guardianship themselves), the facility may find itself at an impasse.

Relying on the logic of the Perry case, an argument can be made that the costs of securing the guardianship should be paid from the patient’s ultimate share of cost calculation. While this result might not be easily obtained, Perry gives valuable support.

Reporting of Abuse, Neglect and Exploitation

JUNE 26, 1995 VOLUME 2, NUMBER 51

Arizona law makes it illegal to abuse, neglect or exploit a “vulnerable” adult. The law also imposes a duty on some professionals to report suspected abuse, neglect and exploitation.

“Abuse” includes physical or sexual abuse or involuntary confinement. “Neglect” occurs when an individual with a duty to care for another fails to discharge that duty. “Exploitation” refers to one individual taking financial advantage of another. While all of these activities are illegal regardless of the age, ability or condition of the victim, the law makes special provisions for those who injure the confused, disabled or otherwise vulnerable adult.

Many professionals who may be responsible for the financial or personal welfare of vulnerable adults are required to report suspected abuse, neglect or exploitation. The list of individuals required to report includes caretakers, social workers, physicians, nurses, aides, tax preparers, accountants and lawyers, and is broadly described to include a myriad of others as well.

When abuse or neglect is suspected, reports must be made to the police department, sheriff’s office or Adult Protective Service. Financial exploitation may be reported instead to the Public Fiduciary. The report must be made immediately, followed by a written report within two days. Failure to report is a misdemeanor, punishable by up to $1,000 in fines, sixty days in jail and a year’s probation.

[Next Issue: What happens when you file a report?]

Economists Plan to Entice Retirees to Arizona

Business and political leaders are hoping to increase Arizona’s share of the growing American retiree community. The Governor’s Strategic Partnership for Economic Development hopes to develop ways to lure retirees to move to Arizona in the future.

Behind the council’s planning is the economic reality that retirees, at least affluent retirees, can provide jobs and economic growth. One concern for economists is at attracting retirees to Arizona might also increase the number of ill and dependent citizens.

Significant increases in the number of retirees might also have political implications. Planners note that there might implications for bond and other elections, among other changes.

The Public Fiduciary


Usually, family members can be relied on to act as guardian or conservator when the need arises. Family members and friends are not always available, however. Sometimes they are even the reason a guardianship or conservatorship is necessary.

The Public Fiduciary’s office was created in 1974 throughout Arizona to deal with just these types of cases. At the time, the legislature was grappling with substantial revisions to the probate code, and (according to legend) State Senator Sandra Day O’Connor decided to create a county office which could take responsibility for the mentally disabled without suitable friends or family.

While some counties waited several years before creating and staffing a Public Fiduciary’s office, Pima County was among the first to act. The office opened with a staff of one (an attorney on loan from the County Attorney’s office) in mid-1974.

From the beginning, Pima County’s Public Fiduciary has always been an attorney. The same experience has not prevailed in every county, however. Today, about half the Public Fiduciaries in other counties have attorneys available to the office.


New cases can be referred to the Pima County Public Fiduciary’s office by telephone (740-5454). Once an investigation has been conducted, they will determine whither they think it is appropriate for the office to act. since the office staff also includes several attorneys, they ordinarily take care of all legal procedures necessary to secure appointment as guardian or conservator.

When the Public Fiduciary decides not to become involved in a case, it is still possible to petition the Court directly. If the Court determines that the patient requires appointment of a guardian or conservator, and if no one else is willing and suitable to serve, the Public Fiduciary can and will be appointed even though they have declined to voluntarily accept the case.


The Public Fiduciary charges fees. There is currently a dispute between the office and the Court whether they should be calculated to approximate their market value or the actual cost (to the County) of staff and office. In either event, the office does have the ability to waive its fee or defer collection until some later date.

The Public Fiduciary’s office, of course, has struggled with the same budget shortages that afflict all government agencies. Still, it may be the best at of providing consistent and professional management in many challenging cases.


The Public Fiduciary’s Office will act as guardian or conservator when no family, friends or private fiduciary is available to act. There is no financial eligibility requirements (though the office tends to become involved with smaller estates). Sometimes, in fact, the office will take the position that an estate is too small to require protection.

Although the office once acted as “representative payee” under Social Security law for a number of residents, the current position is that they must be appointed by the Court in each instance. Consequently, the office will act only for those who lack the capacity to “make or communicate responsible decisions” concerning their own welfare, or who have estates “subject to waste or dissipation unless proper management is provided.”

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