Arizona lawmakers passed bills Tuesday to overhaul state Probate Court and better protect people whose life savings can be drained paying the fees of lawyers and for-profit fiduciaries.
But the bills are minus a key budget provision that reformers say was necessary to ensure fees won't overwhelm incapacitated adults placed under the court's supervision.
"The way the process is set up now, the first time a judge ever sees the fees is 12 months out . . . after the money is spent," said Arizona Court of Appeals Judge Ann Timmer, who chairs a committee of judges, lawyers and fiduciaries appointed by the Arizona Supreme Court last year to recommend Probate Court reforms.
"We went forward with the idea of a budget . . . asking: How do we get a handle on fees that can quickly spiral up?" she said.
The budget provision, which was opposed by some professional fiduciaries and lawyers, likely will be adopted as a future state Supreme Court rule, Timmer said. That means the court would require it in cases even though it was not written into state law. Timmer said introducing budgets was a key focal point of the probate committee and is supported by judges.
Despite the loss of a budget requirement, reformers call the passage of the bills a victory for individuals and their families whose cases are decided in Probate Court.
The legislation follows an ongoing investigation by The Arizona Republic that found Maricopa County Probate Court for years allowed the assets of some vulnerable adults to become cash machines for attorneys and fiduciaries. Judges charged with overseeing these cases rarely stepped in to limit or reduce fees, even when incapacitated adults ended up on state assistance programs.
Senate Bill 1499, known as the Probate Omnibus, combines elements from two competing reform proposals - one supported by judges, fiduciaries and their lawyers and the other by citizen activists - hammered together over the past month.
The bill, sponsored by Sen. Adam Driggs, R-Phoenix, would:
- Require for-profit fiduciaries to preserve the assets of their clients and to avoid charges where the cost outweighs the benefits. Some have complained that fiduciaries would run up excessive bills pursuing legal actions or other goals that did nothing to benefit their clients.
- Require judicial officers to participate in training mandated by the Arizona Supreme Court. In some cases, judges assigned to Probate Court acknowledged that they didn't have a background in probate and asked for assistance from the lawyers in cases.
- Allow the ward or relatives to substitute a guardian without justification and without proof that the guardian acted inappropriately. Fiduciaries have run up costly legal bills fighting their removal from some cases, saying there was no proof they did anything wrong.
- Allow the appointment of a temporary guardian only if facts show there will be immediate and irreparable injury, damage or loss. Critics say that fiduciaries in some cases have claimed that emergencies exist in order to be appointed temporary guardian, leading to high costs.
- Require fiduciaries to provide copies of financial and other case records to their clients and families. In some cases, families have complained that records were kept from them.
A companion piece of legislation, House Bill 2424, also passed by the Legislature Tuesday, creates a legislative-review panel that takes citizen complaints about Probate Court and makes an annual report to the governor and other state officials.
The House bill was championed by self-described victims of Probate Court who said it would force more oversight of the court.
Laura Knaperek, a former state representative and co-author of the House bill, said the new bill incorporates many of the changes sought by those victims and their families.
She said "the biggest loss" is the failure of the bill to require clear and convincing evidence before someone can be appointed conservator to manage an incapacitated adult's finances.
"A lot of the victims were made victims because of that," Knaperek said, adding that judges appointed conservators in cases without a set standard.
"They are happy," she said. "They honestly believed nobody would do anything to help. They wanted to make sure reforms are put in place so what happened (to them) wouldn't happen to anyone else."
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Arizona Lawmakers OK Bills That Would Reform Probate Court
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