For anyone not already tone deaf with a case of earsplitting self-interest, a court-appointed attorney in Maricopa County, Arizona’s Probate Court offers his own cogent solution to what’s become a contest of the dueling probate reformers at the state capitol. The attorney’s name is Jon D. Kitchel and he’s in private practice.
Currently, two bills, one from the state senate and the other from the state house, are vying to conjure up ‘the better prescription’ to cure what’s been ailing the local probate court. See http://www.azcentral.com/arizonarepublic/news/articles/2011/03/03/20110303probate0303.html
I’ve previously and repeatedly added my own tuneless sounds to the celestial chorus of plaintive voices crying for reforms in the desert wilderness. Indeed, I have a separate blog category on the topic called Elder-law related.
Senate Bill 1499 is supported by the courts, probate lawyers, the fiduciaries and other interested stakeholders. The other is House Bill 2424, which is promoted by activists and family members of wards who’ve run up against the buzz saw and are still licking wounds from the experience.
Attorney Kitchel gave me express written permission this morning to post his Open Letter hoping his ideas gain some kind of traction between the competing interests.
Jon Kitchel’s “Open Letter” is as follows:
“A 2011 Committee Report from the Maricopa County Superior Court Probate Court Department reports, “the vast majority of guardianship and conservatorship cases receive proper oversight and monitoring.”http://www.azcentral.com/news/probate/probate-index.php has published many stories over the last two years documenting cases where the probate system has failed to protect wards and their estates. Wards and their families caught in a probate quagmire take little comfort when advised their case makes up a small minority of probate cases.
“Guardians, conservators and trustees (“fiduciaries”) serve as decision makers for the legally impaired and vulnerable among us. Legally impaired and vulnerable persons run the gamut from minor heirs, victims of birth defects, child beatings, and car accidents to mental illness and old age.
“Guardians take care of the person. That means seeing to medical, food, clothing, shelter and other physical needs of a person. It also means which friendships are permitted and whether a ward gets eyeglasses or hearing aids. Conservators and trustees manage the ward’s money, prepare the budgets and pay the bills.
“Grouped together we call them “fiduciaries” and the probate court has exclusive jurisdiction to appoint, supervise and remove them. Fiduciaries perform an essential service for our wards. Under the supervision of the probate court, fiduciaries step in to make decisions when wards are unable to do so for themselves.
“First, require fiduciaries to provide regular financial reports to wards or their counsel if they choose to receive them. Current statutes require a conservator to file an annual accounting listing income and expenses a year after the money is gone. It’s not possible for anyone to monitor an estate without regular financial reports.
“Second, reduce (or eliminate) the barrier to fiduciary substitution. Sometimes a relationship between a fiduciary and ward is unproductive. It may be too expensive or it may simply be a personality conflict. Under our current system, only the court may determine if that relationship should be ended. That determination is made after expensive litigation in which both sides of the conflict are paid from the ward’s estate.
“A better system would allow a ward (as often as once a year) to ask the court to appoint a successor fiduciary for any reason. Fiduciaries, like anyone else, should have to compete for business based on price and performance. If another qualified fiduciary is available and willing to serve (consistent with the ward’s best interests) the court should be required to appoint a successor. The ward might be able to participate in choosing a successor, but that would be up to the probate court.
“Fiduciaries to no surprise, are united in opposition to this proposition. They assert that difficult decisions made for a ward would make the ward unhappy, and that a ward may be subject to the inappropriate influences of third parties leading to the termination of a fiduciary.
“Instead of viewing these challenges as an opportunity to distinguish themselves in a sea of competitors, fiduciaries seem to perceive these challenges as threats to their job security. While the best fiduciaries obviously work very hard to achieve a good working relationship with their clients, a ward may too easily be stuck with one who does not. Arizona is proud of its right-to-work status and new fiduciaries should be encouraged to enter the field and compete for business. A court appointment should not be a gift of job security.
“Third, if a ward is paying the bill, the person being paid should have a primary duty to the ward. That includes both the fiduciary and the lawyer hired by the fiduciary with the ward’s money. A fiduciary and his attorney should not be keeping secrets from the ward while charging the ward for doing so.
“Some reformers believe the solution to our probate troubles is more judicial oversight. Current statutes and court rules already require the court’s active and prudent management of its cases. In reality, more judicial oversight in these days of lean budgets and limited staff is probably just wishful thinking. From the Committee Report, “In times of serious budgetary constraints it is an increasing challenge to ensure all 30,000 probate cases receive the desired level of supervision.” Moreover, wards have a reasonable belief that the only one putting their interests first might be themselves, not an impersonal administrator.
“Arizona’s legislature could take a large step forward to real probate reform by stepping on a few bureaucratic toes and granting Arizona’s wards three basic rights: the right to receive regular financial reports, the right to elect substitution of a fiduciary for any reason, and the right to expect all professionals paid by the ward to put the ward’s interests first.”
Jon D. Kitchel is an attorney in private practice and who has served as a court-appointed attorney in the probate court since 1993. [Reproduced with permission from the author]