Arizona Probate court asked to sanction attorneys in Marie Long case
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Arizona Probate court asked to sanction attorneys in Marie Long case. For more on this see Laurie Robert's Columns and Blogs at azcentral.com.
Guardianship: Improving the Well-Being of Respondents and Wards
Check out this recent article by Wright, Jennifer L., "Guardianship for Your Own Good: Improving the Well-Being of Respondents and Wards" (2010). U of St. Thomas Legal Studies Research Paper No. 10-09. Very insightful.
In her article, Ms. Wright argues that the guardianship system as a whole must be reformed to maximize the therapeutic effects of guardianship and to minimize the unnecessarily anti-therapeutic effects. She examines the effects of guardianship from a therapeutic jurisprudence perspective and proposes and analyzes modifications that could enhance the therapeutic effects of guardianship.
Continue Reading...Recent Ruling -- Guardianships
In Christopher G. v ADES, 2010 WL 282937 (Ariz.App. Div. 2), decided january 25, 2010, Father appealed from the juvenile court's order granting permanent guardianship of his minor son to his adult son Brandon and Brandon's partner Jim. Father contends the evidence at the contested guardianship hearing was insufficient to support the juvenile court's determination that the CPS had “made reasonable efforts to reunite [son] with his father and [that] further efforts would be unproductive because [Father] is unable to properly care for [son].” The Court of Appeals disagreed.
This case deals with A.R.S. § 8-871(A)(3), and the juvenile court's authority to establish a permanent guardianship if it is in the child's best interests and if, when the child is in ADES's custody, ADES “has made reasonable efforts to reunite the parent and child and further efforts would be unproductive.”
The Court of Appeals held that
the court may waive the latter requirement “if reunification of the parent and child is not in the child's best in-terests because the parent is unwilling or unable to properly care for the child.” Id. A court must “give primary consideration to the physical, mental and emotional needs of the child.” § 8-871(C). In the context of proceedings to terminate parental rights, our courts have stated that ADES “need not provide ‘every conceivable service,’ but it must provide a parent with the time and opportunity to participate in programs designed to improve the parent's ability to care for the child.” Mary Ellen C. v. Ariz. Dep't of Econ. Sec., 193 Ariz. 185, ¶ 37, 971 P.2d 1046, 1053 (App.1999), quoting In re Maricopa County Juv. Action No. JS-501904, 180 Ariz. 348, 353, 884 P.2d 234, 239 (App.1994).
To read more on the specific facts,
Continue Reading...Treading Lightly: The Private Fiduciary's Role
When there is internal family quarreling over who gets to act as the guardian of or conservator for Mom or Dad, it is not unusual for the court to appoint a neutral, third-party private fiduciary. A private fiduciary is a person or entity, who for a fee, serves as a court appointed guardian and/or conservator for the ward and is unrelated to the ward. In Arizona, a “guardian” is responsible for the protection of the incapacitated person (called the “ward”) and a “conservator” is responsible for the finances or estate. Private fiduciaries in Arizona are licensed through the Arizona Supreme Court, see Arizona Private Fiduciaries.
Unfortunately, inner-family fighting does not necessarily end once a private fiduciary is appointed.
When someone is found to be incapacitated and in need of a guardian and/or conservator many actors come into play. There is the ward (incapacitated person), and court appointed counsel for the ward. Generally if the ward cannot meaningfully communicate his/her intentions, court appointed counsel will ask leave of the court to serve as the guardian ad litem , (sometimes called the “best interests attorney”). However, a separate guardian ad litem may also be appointed by the court to recommend what course of action is in the ward’s best interest. Typically, private fiduciaries are “for-profit” entities. One quandary facing private fiduciaries is protecting the interests of the ward while responding to the numerous pleadings and in-fighting that may continue even after their appointment.
Thus in contested matters, the ward’s estate is likely paying the fees for his/her attorney, the fees for the guardian/conservator, the fees for the attorney for the guardian/ conservator, and possibly other experts. With so many parties the costs of a guardianship and conservatorship can be quite costly. The problems are compounded when there is inner-family fighting over what is best for the ward and the ward’s estate. The private fiduciary may be compelled to respond to the numerous pleadings and cross pleadings filed by interested parties.
The court will generally not restrict the filing of motions or pleadings by warring family members for fear of missing substantive complaints.
So, what is a private fiduciary to do to try and keep costs down? Here are a few suggestions for private fiduciaries:
- Seek approval from the court to participate in Alternative Dispute Resolution (ADR) or mediation. Although initially expensive, removing the formality of litigation and seeking consensus amongst family members as to how future complaints may be heard without court intervention can be productive and reduce costs;
- Seek the appointment of a third party special master to hear and decide smaller issues;
- In extreme cases, consider filing for Rule 11 sanctions against frivolous claims;
- Consider asking the court to award attorney’s fees in any contested action upon “clear and convincing evidence that the claim or defense constitutes harassment, is groundless and is not made in good faith”, pursuant to A.R.S.§12-341.01; although this needs to be cautiously applied, for the ward may be furthering the litigation and in-fighting.
Since the private fiduciary’s goal is to preserve the estate as much as possible, trying to find balance to hear the concerns of the ward and family members, can be a treacherous undertaking. It is not unusual for the private fiduciary to become the target of the family’s anger and frustration.
If you have any questions regarding guardianships or conservatorships, or representation of private fiduciaries, please contact the probate & elder law attorneys at Nirenstein Garnice Soderquist PLC.
What is a guardian? What is guardianship?
A guardianship is a legal proceeding in the Arizona probate courts in which a guardian is appointed to exercise the legal rights of an incapacitated person concerning their health and well-being.
A guardian is an individual or institution such as a child, relative or bank trust department appointed by the probate court to care for an incapacitated person-called a "ward"-or for the ward's assets.
In many instances, as our families grow older, it becomes necessary to make sure that elder family members are properly cared for. Sometimes, age and/or medical conditions make it necessary that the younger family members who care for -- and have their elder family member's interests at heart -- step into to make important decisions.
