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COMMON MISTAKES IN GUARDIANSHIP AND CONSERVATORSHIP PROCEEDINGS
Presented to the Coconino County Bar Association October 25, 2002 By Thomas J. Murphy Murphy Law Firm, Inc. P O Box 51244 Phoenix, AZ 85076 (480) 838-4838
1. DIFFERENT STANDARDS FOR IMPOSITION OF GUARDIANSHIPS AND CONSERVATORSHIPS – Guardianships require proof of “incapacity” (not “incompetency”), defined as someone who is impaired “to the extent that he lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his person”. ARS 14-5101(1). Conservatorships require proof that a person “is unable to manage the person’s estate and affairs effectively” and that “the person has property which will be wasted or dissipated unless proper management is provided”. ARS 14-5401(2). A conservatorship has a lower standard of proof, so that a conservatorship can be imposed on a person who is not incapacitated but may be unable to effectively manage their finances. Arizona Probate Code Practice Manual, Sec. 8.1
2. NOTICE – failure to personally serve ward/protected person (“WPP”) who is over 14 years of age. ARS 14-5309 & 14-5405. Note that notice cannot be waived unless WPP is present at the hearing. ARS 14-5309(b) & 14-5405(b). However, once service is made, there is no requirement that WPP personally appear at hearing.
3. NOTICE – failure to personally serve spouse of WPP. ARS 14-5309(b) & 14-5405(b)
4. NOTICE – failure to personally serve parent of WPP. ARS 14-1401, 14-5207, 14-5309(b) & 14-5405(b). Includes long-lost parent – see #5
5. NOTICE – parent of minor is served but no consent of parent to appointment is obtained by Petitioner.
6. NOTICE – failure to properly publish notice when person entitled to notice cannot be found, ie, long-lost father. Rules of Civil Procedure 4.1(n) & 4.2(f). Notice by publication is 2-step process: Step #1 –Investigation undertaken with reasonable diligence and good faith to locate person. ARS 14-1401(a)(3); Mullane v. Central Hanover Bank & Trust Co., 339 US 306, 70 SCt 652 (1950); Tulsa Professional Collection Service, Inc. v. Pope, 485 US 478, 108 SCt 1340 (1988) Petitioner’s attorney should contact local investigator who can run county records, review local phone book, etc. Have investigator prepare written report detailing efforts undertaken to locate person. Attorney should then attach this to pleading (report of counsel or affidavit) explaining how last known address was determined. Step #2 – Publish in county where hearing will be held. ARS 14-1401(3) states for three successive weeks. RCP 4.2(f) requires four weeks. If last known address is within Arizona, must also publish in county of last known address. RCP 4.1(n).
7. NOTICE – 14 days. ARS 14-1401. Be mindful of this when scheduling hearing with court staff.
8. NO NOTICE, NO JURISDICTION – Failure to properly notice deprives court of jurisdiction. Ronan v. First National Bank of Arizona, 90 Ariz 341 (1962); Bowen v. Graham, 140 Ariz 593 (1984); Kadota v. Hosogai, 125 Ariz 131 (App, 1980).
9. DOCTOR’S REPORT – Best to get this before you file petition to make sure you can prove incapacity or inability to effectively manage finances. Attorney should send cover letter explaining the factual situation that has lead family to seek G/C as well as providing doctor with the statutory definitions of incapacity and inability to effectively manage finances.
10. BONDING – failure to make sure prior to appointment that Petitioner is bondable. Also make sure that spouse of Petitioner is creditworthy.
11. BONDING – failure to review whether bond amount is appropriate when annual accounting is filed.
12. FINGERPRINTING – required for appointment of non-blood relative when WPP is minor. ARS 14-5206(b). Allow at least 12 weeks for report. Can conduct hearing in the interim but letters will not issue until report is provided to court.
13. DRIVERS LICENSE – failure to address in petition and form of order whether court should revoke WPP’s driver’s license. Imposition of G/C no longer automatically revokes license. ARS 28-3153(a)(8)
14. CONFORMED COPIES – always provide court staff with conformed copies, especially for pleadings filed within two weeks of hearing.
15. LOSER PAYS – if Petitioner fails to prevail at hearing, Petitioner is personally liable for fees of Petitioner’s attorney and fees of WPP’s attorney. ARS 14-5314
16. COURT-APPOINTED COUNSEL – Failure to inform Petitioner that WPP’s estate, not the County, pays fees of court-appointed counsel. ARS 14-5414
17. COURT-APPOINTED COUNSEL – remains on case until motion to withdraw is filed and granted. Until that time, counsel must be noticed/copied on all annual accountings, reports of guardian and any other pleadings.
18. COURT-APPOINTED COUNSEL IS NOT GAL – Conflicts between counsel and WPP prior to appointment of G/C may necessitate appointment of guardian ad litem, in accordance with ARS 14-1403. Court-appointed counsel advocates the positions of WPP. GAL must act in the best interests of WPP, which may differ from what WPP desires. See Ethics Opinion #2000-06 and ER 1.14.
19. COURT-APPOINTED COUNSEL – DUTY TO REPORT FINANCIAL EXPLOITATION? Counsel learns during initial representation of financial exploitation of WPP who does not want to pursue the issue. Does the mandatory reporting requirement of ARS 46-454 & -456 override attorney-client privilege? Ethics Opinion #2001-02 says reporting the exploitation by the attorney is not an ethical violation but the opinion expressly does not address the implications of the attorney-client privilege. General consensus among Phoenix probate litigators is to disclose matter to court, who may in turn notify law enforcement authorities.
20. FREE RENT – if Petitioner or other child is living with WPP and not paying rent, Court will require rent be paid unless very compelling reason exists.
21. PURCHASE OF AUTOMOBILE – Court will frequently deny this -- considers this to be an obligation of parent.
22. ALTCS PLANNING – failure to consider ALTCS planning when expenses exceed income.
23. APPLICATION FOR APPROVAL OF FEES – file application for fees only if court approval of fees is desired. There is no requirement that all attorney fees be approved by court. ARS 14-5414. If court approval is desired, attorney should have the matter placed on court’s non-appearance calendar and should notice all interested parties of the hearing date. |