Proposed probate rules 2011 forms and schedules 080811 (2)


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Powerpoint presentation on the proposed probate changes in Arizona by Carla M. Jones, LF, President of Northern Arizona Fiduciaries.

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  • Sworn Statement of Guardian with In Patient Mental Health Care and Treatment Authority Pursuant to ARS 14-5312.01
  • Sworn Statement of Agent Under Mental Health Power of Attorney
  • Rule 30.1: Good Faith Estimate “A Petition to appoint a conservator shall be accompanied by a good faith estimate of all projected monthly and annual costs that shall be incurred by a conservator, except medical costs, to the extent that the information can be reasonably known or projected at the time a petition is filed. The good faith estimate shall be made in Form 5 as set forth in Rule 38 (Forms) and shall conform to the instructions provided with Form 5. If the Petitioner is unable to provide all or part of the Good Faith Estimate at the time the petition is filed, the petitioner must state in the petition all efforts made by the petitioner to obtain the estimates and the petitioner shall update the food faith estimate five days before the hearing on the petition if further information becomes known.
  • Estimates on all admin costs until filing inventory (discuss situations, etc) estimates on food, shelter, clothing (discuss placement issues pre-appt) estimate monthly and yearly admin and disbursements prior to knowing any information re placement, social changes, medical issues, etc.
  • Credit report requirement was part of SB1499 that became law on July 20, 2011 with a delayed effective date of December 31, 2011.
  • This is the precursor form to the conservators first annual account and each subsequent account. If the cons estate is small, you may request the court allow you to file only an inventory rather than a complete form 6 and filing Form 10 the Simplified Accounting Form, unless simplified filings are authorized by the court, you must file the detailed reports. Only Column F is utilized with Form 6.
  • Proposed probate rules 2011 forms and schedules 080811 (2)

    1. 2. SB1499 Became Law July 20, 2011 Delayed Effective Date of Dec. 31, 2011 <ul><li>ARS §14-5111 : Provides a claim for compensation by attorneys or GAL (guardian ad litem) who intend to be paid MUST be submitted to fiduciary within 4 months of either rendering services, incurring the cost, initial appt of the fiduciary. </li></ul><ul><li>ARS §14-5418: Requires that the Conservator attach a credit report to the initial inventory dated within 90 days. </li></ul><ul><li>In addition a person who is entitled to notice of annual accountings may request in writing that the conservator do one of the following, not more than once every 30 days (requesting party to pay reasonable costs): </li></ul><ul><li>Allow the person to view financial records, conservator’s billing statements and conservator’s attorneys billing statements, or other records related to the protected person </li></ul><ul><li>Provide the requesting person with copies of these documents </li></ul><ul><li>Provide a report of receipts and disbursements </li></ul><ul><li>ARS §14-5651(A)(3): Requires that upon appointment licensed fiduciaries provide written information to the ward and all persons entitled to notice that the fiduciary is licensed by the Supreme court and subject to regulation by the Supreme court, and include reference to the code of conduct that all licensed fiduciaries must follow. </li></ul>
    2. 6. HB2211 Became Law July 20, 2011 <ul><li>ARS §14-5312.02: to Clarify that guardians appointed with Mental Health authority under ARS §14-5312.01 have the power to admit their wards for inpatient mental health treatment. While the authority has already long existed, this statute clarifies that these Guardians have the authority to consent to continuing medical treatment during and after their admission. Upon admission, the guardian must present the facility with a certified copy, or a photocopy of the certified copy, of the Guardian’s Letters of Guardianship AND with a sworn statement under penalty of perjury that the Guardian has presented to the facility a certified copy or a true and correct copy of a certified copy, of Letters of Guardianship with Mental Health Authority that authorize the Guardian to admit the ward to a level one behavioral unit issued pursuant to ARS § 14-5312.01, subsection B, and that the Letters of Guardianship are currently effective and have not been revoked, terminated, or rescinded. </li></ul>
    3. 9. Proposed Form 5 Petitioner’s Good Faith Estimate <ul><li>Issues: </li></ul><ul><li>Pre-Appt Information No legal authority to receive </li></ul><ul><li>Time to attempt to obtain information prior to funds </li></ul><ul><li>Gaining personal/confidential information prior to Adjudication </li></ul><ul><li>If Petitioner is not appointed or objection is filed and objecting party is appointed, who is responsible for costs related to Form 5? </li></ul><ul><li>Petitioner that may not be appt? </li></ul><ul><li>Conservator that is appt to pay non appt petitioner? </li></ul><ul><li>No one and costs absorbed by initial petitioner? </li></ul>
    4. 10. Form 5: Good Faith Estimate If Approved or Adopted: <ul><li>This form is based on estimates of disbursements anticipated within the 1 st year. </li></ul><ul><li>This good Faith Estimate would be required by Rule 30.1 </li></ul><ul><li>This is the form that will likely form the basis for financial orders issued by the court. </li></ul><ul><li>This form is due at the TIME THE PETITION IS FILED. </li></ul><ul><li>Filed as Confidential Document-not available for public inspection </li></ul><ul><li>While Petition is pending Petitioner has an obligation to file amendments to Form 5 not less than 5 days prior to hearing </li></ul><ul><li>Brief description of estimate on each line and basis or rationale </li></ul><ul><li>Petitioner is required to submit good faith estimates or a written statement describing your due diligence to obtain the information </li></ul>
    5. 12. Proposed Form 6: CONSERVATORS 90 DAY REPORT Conservators Budget <ul><li>To be filed with the inventory (within 90 days of Appt) and includes: </li></ul><ul><li>Inventory </li></ul><ul><li>Schedule 1: Statement of Receipts and Disbursements </li></ul><ul><li>Schedule 2: Statement of Net Assets </li></ul><ul><li>Schedule 3: Statement of Sustainability </li></ul><ul><li>Supporting Detail Required for Schedules 1-3 </li></ul><ul><li>Credit Report (Form 6 does not reference this but it is required pursuant to ARS § 14-5418 “…shall attach to the initial inventory…” </li></ul>
    6. 13. Proposed Form 6: CONSERVATORS 90 DAY REPORT Conservators Budget <ul><li>Covers date of initial appt through and including the end date of the first accounting </li></ul><ul><li>Unless otherwise ordered by the court the budget will be submitted in the appropriate format according to Rule 38 </li></ul><ul><li>Must provide copy to all persons entitled to notice under ARS §14-5419(C) </li></ul><ul><li>Shall file amendment within 30 days after reasonably projecting that expenditures will exceed the approved budget in any specific category by 10% or $2,000 whichever is greater </li></ul><ul><li>Interested persons may file an objection within 14 days after the filing of the budget </li></ul><ul><li>On the Court’s own motion or by filed objection, the court shall approve, disapprove, or modify the budget in the wards best interest </li></ul>
    7. 18. Schedule 3: Form 6 : Statement of Sustainability of Conservatorship <ul><li>Purpose: To estimate how long the conservatorship estate can meet expenses of ward </li></ul><ul><li>Conservatorship estate MUST have a written management plan </li></ul><ul><li>Sustainability Formula: </li></ul><ul><li>(Available Assets – Liabilities of Estate </li></ul><ul><li>(Annual Expenditures- Annual Income </li></ul><ul><li>> Projected Life Span (Actuarial Table SSA.GOV) </li></ul>
    8. 19. Sustainability Example Female Age 88 <ul><li>(Available Assets – Liabilities) </li></ul><ul><li>________________________________ > Projected Life </li></ul><ul><li> (5.45 yrs) </li></ul><ul><li>(Annual Expenditures – Annual Income) </li></ul><ul><li>670,000.00 Assets 112,900.00 Ann Exp </li></ul><ul><li>0.00 total liab 57,300.00 Ann Inc </li></ul><ul><li>670,000.00 55,600.00 </li></ul><ul><li>670,000/55,600.=12.05 </li></ul>
    9. 20. Sustainability Example Female Age 62 <ul><li>Available Assets – Liabilities) </li></ul><ul><li>________________________________ > Projected Life </li></ul><ul><li> (22.31 yrs) </li></ul><ul><li>(Annual Expenditures – Annual Income) </li></ul><ul><li>130,000 assets 45,000 Ann Exp </li></ul><ul><li>0 Liab. 4,000 Ann Inc </li></ul><ul><li>130,000 41,000 </li></ul><ul><li>130,000/41,000=3.17 </li></ul><ul><li>22.31-3.17=19.14 ????????????? </li></ul>
    10. 21. Proposed Form 7 First Conservator’s Account <ul><li>This report covers a period that ends 9 months after the issuance of letters, and is due 90 days later (on the anniversary date) subsequent conservator accounts are due each year on the anniversary and are 12 month reports. </li></ul><ul><li>Must include the following: </li></ul><ul><li>Schedule 1: Statement Receipts/Disbursements </li></ul><ul><li>Schedule 2: Statement Net Assets & Reconciliation </li></ul><ul><li>Schedule 3: Statement of Sustainability </li></ul><ul><li>Recent Bank Statements for EACH bank account </li></ul><ul><li>Supporting Detail for Schedules 1-3 </li></ul><ul><li>Transaction Log which details all financial transactions during the current reporting period and reported by category </li></ul>
    11. 26. Proposed Forms 8-10 <ul><li>Form 8: Conservators Account </li></ul><ul><li>1. Begin using this form at 2 nd accounting through until Final Accounting is to be submitted. </li></ul><ul><li>Form 9: Final Conservator’s Account </li></ul><ul><li>1. Omits schedule 3-statement of sustainability </li></ul><ul><li>Form 10: Simplified Conservator’s Account </li></ul><ul><li>1. Used for smaller estates, upon court approval and authorization </li></ul><ul><li>2. Can also be used for estates with very little activity </li></ul><ul><li>3. If you are required to file a budget with your annual account, then the court has not authorized you to use Form 10. </li></ul><ul><li>4. Form 10 can be used in place of Forms 7-9, upon court approval </li></ul>
    12. 27. RULE 38 FORMS <ul><li>Unless otherwise ordered by the court, Forms 5-9 shall be the exclusive method for presenting such matters in the Superior Court. Form 10 can be used by the Conservator, only if authorized to do so. </li></ul><ul><li>Forms 5-10 must be used in their exact form as they are exclusive means for addressing the court in writing. </li></ul><ul><li>The requirement of using these forms is an effort to increase judicial oversight of conservatorships. </li></ul>
    13. 28. Proposed Statewide Fee Guidelines Apply to court appointed Guardians, Conservators, and Personal Representatives, Licensed and Unlicensed as well as Guardian Ad Litems and Attorneys who are paid by the Ward, Protected Person or Estate… <ul><li>All hourly billing increment 1/10, no minimum billing in excess of 1/10 </li></ul><ul><li>Block Billing is not permitted (this is total time on multiple tasks) </li></ul><ul><li>In-State Mileage NOT reimbursed- Travel and Wait time billed at 100% </li></ul><ul><li>Billable time benefiting multiple clients appropriately apportioned </li></ul><ul><li>Hourly rate billed shall commensurate with the task performed-Attorneys can only bill attorney rates when performing services that require an attorney, paralegal rates when performing paralegal services, and fiduciary rates when performing fiduciary services. </li></ul><ul><li>Proposed Points of Reference-Benchmarks </li></ul><ul><li>Preparation of Conservators Annual Account and Budget 5 HOURS Year </li></ul><ul><li>Preparation of Annual Guardian’s Report 2 HOURS per year </li></ul><ul><li>Routine Bookkeeping including disbursements, reconciliations, data entry of income and expenses and mail processing 4 HOURS per MONTH </li></ul><ul><li>The total amount of all annual expenditures, including reasonable professional fees, shall not deplete the estate during the anticipated lifespan </li></ul>
    14. 29. WHAT CAN YOU DO? <ul><li>NAF website has link for public comment OR </li></ul><ul><li>Go to AZCOURTS.GOV </li></ul><ul><li>Click COURT ADMIN/AOC tab </li></ul><ul><li>GO to Committees and Commissions </li></ul><ul><li>Scroll to Committee on Improving Judicial Oversight and Processing of Probate </li></ul><ul><li>Provide rational comments or suggestions to petition by Sept. 22, 2011 </li></ul>
    15. 32.