PROBATE REFORM- TO BE OR NOT TO BE, THAT IS THE QUESTION
Guardianship in Arizona involves the appointment of somebody to make virtually all decisions for someone the court has determined to be incapacitated. That means the appointee – the Guardian – makes decisions about medical care, where the person lives and with whom, and even who the person associates with.
Conservatorship in Arizona involves appointing someone – a Conservator – who will completely take over the assets of someone the court determines cannot manage their own finances. The Conservator then decides how that money is to be spent, and what property is to be sold, and then the Conservator pays themselves, their attorney, and whatever service providers they choose.
Guardianship and Conservatorship have become “big business” in Arizona as the population ages. There are licensed fiduciaries who often are placed in the role of Guardian and Conservator and operate with very little, if any supervision. A system that was designed to protect vulnerable people has become, in some instances, a system that enriches a handful of professionals, including fiduciaries and attorneys.
Many state legislatures, including Arizona’s, are beginning to take notice of the abuses and trying to implement laws to protect vulnerable adults. The process of being completely stripped of your rights, though having a guardian or conservator appointed, has been easy in Arizona, requiring minimal proof and often taking place in a telephonic hearing lasting a few minutes. Although the person over whom guardianship and conservatorship are sought has some rights, there has not been a good way of enforcing those rights. While an attorney is usually appointed to protect those rights, many of the attorneys have little experience and even less desire to advocate for people accused of being incapacitated. I have heard attorneys say they felt their position was as “an innocent bystander” or say they were just “along for the ride.”
On October 30, 2023, new laws will take effect attempting to assist these vulnerable adults in protecting their rights and their property. There is considerable opposition to these new laws as they will likely impact attorneys' and fiduciaries' income.
One of the new laws is ARS 14-1110 which creates an advisory panel that will oversee activities of the Probate court and hold quarterly public hearings to improve guardianship and conservatorship through legislation. Speculation in the legal community is that this panel may never get off the ground. Eleven members must be appointed, and that process seems like it will take a while. It is also interesting that the statute precludes any payment to panel members or even reimbursement of their expenses.
It seems opposition will be very vigorous from those who are in power. In the coming months, I will be sharing the progress of the advisory panel, what progress they have accomplished, reviewing the other laws that have a direct impact on Probate law, and how you as a community member can safeguard yourself from fiduciaries and attorneys involved in the process.
