Guardianships And Conservatorships In Arizona

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Guardianships And Conservatorships In Arizona

  1. 1. Selecting the Fiduciary Heather Frenette, RN, MSN, CMC The Sun Valley Group, Inc. Arizona Care Management
  2. 2. Petitioner <ul><li>The Petitioner is the person who files the Petition for Appointment. </li></ul><ul><li>Any interested person can be the Petitioner, however there is a statutory priority. </li></ul><ul><li>The Petitioner and the party(s) that the petitioner requests to be appointed do not have to be the same person(s). </li></ul><ul><li>The Petitioner may be the Fiduciary. </li></ul>
  3. 3. Who has priority to serve? <ul><li>A person nominated in a P.O.A. document. </li></ul><ul><li>Spouse of an incapacitated person. </li></ul><ul><li>Adult child of the incapacitated person. </li></ul><ul><li>Parent of the incapacitated person. </li></ul><ul><li>Any relative of the incapacitated person with whom the incapacitated person has resided for more than 6 months before filing of the petition. </li></ul>
  4. 4. Who has priority to serve? <ul><li>The nominee of a person who is caring for or paying benefits to the incapacitated person. </li></ul><ul><li>If the incapacitated person is a veteran, the spouse of a veteran or the minor child of a veteran, the department of veterans’ services. </li></ul><ul><li>A fiduciary, guardian or conservator. </li></ul><ul><li>§ 14-5311 </li></ul><ul><li>A third party appointed by the court in disputed cases. </li></ul>
  5. 5. Fiduciary <ul><li>A Fiduciary is a person/company who is legally responsible for another person and/or their estate. </li></ul><ul><li>A fiduciary can be a private individual, a government entity, a not-for-profit corporation, or a private company. </li></ul>
  6. 6. Certification <ul><li>In Arizona, any non-family member who serves as a fiduciary must be certified by the Arizona Supreme Court Fiduciary Certification Program in order to receive compensation for services provided. </li></ul><ul><li>Banks and Corporate Trust Companies are exempt from certification. </li></ul><ul><li>The program has requirements for both initial certification and biannual renewal. </li></ul><ul><li>www.supreme.state.az.us/fiduc </li></ul>
  7. 7. Use of Co-Fiduciaries <ul><li>Co-fiduciaries MUST get along and agree on the plan of care. </li></ul><ul><li>They can act independently of each other. </li></ul><ul><li>Must have good communication and trust. </li></ul><ul><li>Advantages: </li></ul><ul><ul><li>Availability </li></ul></ul><ul><ul><li>Can divide up the responsibilities </li></ul></ul><ul><ul><li>Avoid power struggles within a family </li></ul></ul>
  8. 8. The Private Fiduciary <ul><li>A Private Fiduciary can be either for-profit or not-for-profit. </li></ul><ul><li>A Private Fiduciary is a non-government agency. </li></ul><ul><li>An incorporated fiduciary cannot appear in court without an attorney. </li></ul>
  9. 9. The Public Fiduciary <ul><li>There is a Public Fiduciary office in every county in Arizona. </li></ul><ul><li>The Fiduciary of last resort – when there is no other person or corporation qualified and willing to serve. </li></ul><ul><li>Serves as court appointed Guardian, Conservator and Personal Representative. </li></ul><ul><li>Does not serve as Trustee. </li></ul>
  10. 10. Arizona Department of Veteran’s Services (ADVS) <ul><li>Considered a Private Fiduciary </li></ul><ul><li>Can only serve as the fiduciary for a veteran, the spouse of a veteran or the minor child of a veteran. </li></ul><ul><li>Can be appointed as Custodian of VA Benefits by Federal VA. </li></ul><ul><li>Can serve as Social Security Representative Payee. </li></ul><ul><li>Can act as Successor Trustee. </li></ul>
  11. 11. When do you need a Fiduciary? <ul><li>When family or friends are unable or unwilling to serve. </li></ul><ul><li>When an independent third party is needed due to family conflict. </li></ul><ul><li>When the person who currently is acting in the fiduciary role is abusing, neglecting or exploiting the vulnerable person. </li></ul>
  12. 12. Selecting the best Fiduciary for the situation <ul><li>What do you need done? </li></ul><ul><li>Is focus medical, psychosocial or financial? </li></ul><ul><li>How long have they been in business </li></ul><ul><li>Solo Practitioner vs. “Big Houses” </li></ul><ul><li>Do they have expertise in the area related to your case? </li></ul><ul><li>Is the personality of the fiduciary a good fit for the client? For the family? </li></ul>
  13. 13. Co-Guardian Co-Conservator Guardian & third party institution <ul><li>Done on a case by case basis. </li></ul><ul><li>Banks and Corporate Trust Officers typically do not serve in Guardian roles and require another party to function in the Guardian role. </li></ul>
  14. 14. Bonding <ul><li>Fiduciaries (except Pub Fid, ADVS and Bank/Corp. Trustees) acting in any financial court appointment must be bonded for the assets they have access to. </li></ul><ul><li>Often money and property is restricted, allowing for a lower bond. </li></ul><ul><li>Bond must be equal to unrestricted assets, the principal, income and interest that the fiduciary will have access to within the accounting year for which the bond is issued. </li></ul>
  15. 15. Reporting <ul><li>Initial Inventory – due 90 days from permanent appointment of a financial fiduciary. </li></ul><ul><li>Annual Guardian Report – due annually by the Guardian. </li></ul><ul><li>Estate Management Plan – due annually by the Conservator (only in Maricopa). </li></ul><ul><li>Annual Accounting – due annually by the Conservator. </li></ul><ul><li>Fee Affidavit – used for approval of attorney and fiduciary fees (not standardized in AZ). </li></ul>
  16. 16. How lawyers get Fiduciaries in trouble <ul><li>Filing documents late </li></ul><ul><li>Allowing temporary letters of appointment lapse </li></ul><ul><li>Not consulting with the fiduciary before making a settlement or stipulating to something </li></ul><ul><li>Not forwarding court notices and other relevant documents </li></ul><ul><li>Providing councel outside of one’s knowledge base </li></ul>

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