Category Archives: Incapacity

  • 30
    Sep 15
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How to Remove a Conservator

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How to Remove a ConservatorWhen someone is legally appointed to manage the finances of another person, that’s known as a “conservatorship.” This is a beneficial option for those who aren’t able to manage their own money due to health concerns, mental illness or old age. There are also conservatorships for children who receive money.

Unfortunately, some conservators mismanage funds (intentionally or unintentionally), compromising the financial wellbeing of people who aren’t able to tend to their own affairs. While it’s normal to become angry or frustrated in these situations, you should know that you have legal recourse to remove an ineffective conservator and seek a replacement.

A conservator has a legal duty to protect and conserve the protected person’s money and assets. If the conservator fails to fulfill these duties and responsibilities, he or she can be removed from the position.

The first step in the process is to gather evidence. You will need to prove that the conservator has failed to perform the required duties. Evidence might include bank statements or copies of checks that show the conservator has not been acting in the best interest of the protected person (known as a “ward”).

These statements can be compared against the annual accounting that the conservator is responsible for filing. If you need additional information in order to prove the conservator’s mismanagement of funds and assets, you can petition the court for a more detailed disclosure of financial dealings. Look for an experienced probate litigation attorney to assist you with this process.

Your attorney will help you file a notice of appearance and submit the documents that show the mismanagement of the protected person’s funds.

If you need to get documents from the conservator or another party (such as a bank or other involved person), your attorney can serve what is called a “subpoena duces tecum.” If you’re not able to get the necessary documents for evidence, you may need to work with the court to obtain them.

After you and your attorney have submitted the documentation, the court will rule on whether the conservator should be removed and, if so, will appoint a successor.

The courts, and the state and county governments, take very seriously the rights of vulnerable children and adults. The court accountant’s office closely monitors conservatorships. The court accountant, however, is merely reviewing annual accountings. If you or another family member discover before that review that money is being stolen or misused, you or the family member should take immediate action.

It’s important to act quickly in situations where money or assets are being stolen. Such quick action will increase the likelihood of recovering lost funds.

If you have questions about how to remove a conservator, please contact our office. We’d love to help.

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  • 23
    Sep 15
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Removing a Guardian with Mental Health Powers

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Removing a Guardian with Mental Health PowersIt can be emotionally draining for you when your loved one’s personal rights have been limited. When age, mental or physical illness or other situations affect the ability of the loved one to maintain independence, important decisions (such as choice in doctors, healthcare treatments, where to live, whether he or she can drive a car and what family and friends can visit) need to be made by someone else.

That’s where guardianship can help. To review, a guardian is a person granted the legal authority and responsibility to help another person make decisions that affect his or her wellbeing. A guardian with mental health powers has authority to make decisions specific to mental health care, including whether the ward needs inpatient hospitalization.

Unfortunately, a guardian may not always do a good job fulfilling the delicate and sometimes confusing responsibilities of the position, and may be putting the protected person at risk.

If you find yourself in a situation where a guardian is not acting in the best interest of your loved one, you have the right to petition the court to remove the current guardian and to appoint a replacement.

If this happens, you will need to supply the court with a professional evaluation of the protected person. The quickest way to work with HIPAA and other confidentiality laws (HIPAA refers to The Health Insurance Portability and Accountability Act of 1996) is to seek assistance from an experienced probate attorney to file a motion with the court that will require the ward to receive an additional psychiatric examination.

This ruling process typically takes about two or three months. If the situation is an emergency, your attorney can help you file for emergency status to receive a ruling sooner.

The court will make a ruling for removing a guardian and appointing a successor based on the best interest of the ward. This means that the court doesn’t necessarily need to find that the current guardian has acted inappropriately. The court is interested in what is best for the protected person and will support replacing a current guardian with a successor who is better qualified.

The most common mistake that guardians make is not disclosing information to the family and lawyers. If you’re acting as a guardian with mental health powers, make sure you keep lines of communication open between your ward’s family and attorney. Maintain copies of all letters and reports that are sent to involved parties. Preserve meticulous records of expenses you’ve made for which you’ve used the ward’s resources.

Whether you’re a guardian in need of help navigating the responsibilities of the position, or a family member concerned about the care your loved one is receiving, don’t be afraid to talk to an attorney. Attorneys’ experience in navigating the legal system can help you make sure your loved one receives proper care and give you peace of mind.

  • 16
    Sep 15
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Guardianship with Mental Health Powers

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Guardianship with Mental Health PowersDisability, physical or mental illness or alcohol or drug abuse can limit a person’s ability to live an independent life. In such cases, a guardian may be appointed to take care of everyday tasks such as housing, education, medical care, food and clothing. However, this post discusses a guardianship with mental health powers, meaning that the guardian has additional powers to deal with psychological or psychiatric issues.

To review, a guardian has the legal authority and responsibility to make all these decisions on behalf of another (who is legally referred to as a ward, incapacitated person or protected person) to protect his or her well-being. A guardian who has powers over mental health has additional authority to admit the protected person for inpatient mental-health treatment.

Admitting a ward for inpatient therapy is a serious responsibility. Inpatient treatment means the ward will not be free to leave. This limits or removes a U.S. citizen’s constitutional right to liberty and due process. Taking such an action is, understandably, a measure of last resort.

A guardian with “mental health powers” has other responsibilities and obligations of that include:

• Making decisions concerning the ward’s mental-health needs. This includes the decision to place a ward in a mental-health treatment facility.

• Seeking the advice and assistance of qualified mental health professionals.

• Exploring alternatives to inpatient hospitalization. Inpatient hospitalization should be the last resort.

• Giving notice of placement. That is, notifying the ward’s attorney of placement of the ward in an inpatient treatment facility within 48 hours.

• Providing assessment of the appropriateness of placement. The guardian is responsible to make sure assessment is done every 30 days. A copy of the assessment must be mailed to the ward’s attorney.

• Giving the facility the ward’s attorney’s contact information. If the ward is admitted to an inpatient behavioral health treatment facility, the guardian must make sure the facility has the address and telephone number of the ward’s attorney.

• Transferring a patient to least-restrictive care once and if inpatient care is no longer needed. The guardian must find alternative care within 10 days after notification from the inpatient facility that the ward is no longer in need of such care. If there are issues in finding alternative placement, the guardian or medical director or both may request the court hold a hearing for assistance.

The longest time that a guardian can admit a ward to inpatient psychiatric facility for mental health care is one year. If inpatient care is required after the year is up, the court will need to grant authorization for an additional year.

If you have questions about guardianship with mental health powers, contact our office. This is a complicated area of law and can be confusing, even for lawyers. We have the experience to help you safely navigate this often-challenging part of life.

In the next post we will look at how to remove a guardian with mental health powers.

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  • 05
    Aug 15
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Petitioning to Remove a Personal Representative

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Petitioning to Remove a Personal RepresentativeIn the previous post we covered how to gather evidence to remove a personal representative. Once you have the necessary documentation as evidence, you can petition the court to remove the personal representative and appoint a successor.

The first step in petitioning the courts is to work with your probate litigation attorney to put together a formal Petition for Removal of Personal Representative and Appointment of Successor Personal Representative.

The Petition needs to include specific details that will be used as evidence to justify the removal of the personal representative. The more evidence and documentation that you can provide to the judge, the better your case. (Documentation should clearly show mismanagement of the estate, such as copies of checks drawn on the estate written to the personal representative, indicating that the representative is using estate money for personal gain.)

Once you have compiled the initial paperwork, the next step is to discuss with your attorney how quickly you should act to remove the representative. Discuss with your attorney if you can petition the court for emergency relief, if you feel this is necessary. The courts will work with you if you can prove that there’s an urgent need to replace an ineffective (or dishonest) personal representative. Probate judges and commissioners are both extremely busy and also extremely reluctant to take immediate action to remove a personal representative. The process of removing a personal representative normally takes months.

However, there are things you can do in the meanwhile. You can get a Temporary Restraining Order preventing the personal representative (or others) from taking action detrimental to the estate. You can request an Expedited Order for Formal Administration, meaning that the Personal Representative will need to get the court’s approval before taking any future action.

If the court approves the emergency status here, the court will take action quicker than it would otherwise. In most cases, there will still need to be at least one hearing. In any event, your lawyer can help you in arranging this.

If your case is not urgent, it will likely take the court anywhere from a few weeks to a couple of months before it intervenes. Everyone involved in the estate will need to be notified of this process. (Again, remember that there are often steps that can be taken to protect the estate in the meanwhile.)

There is normally more than one hearing. The first one, known as a “return hearing,” determines whether anyone objects to your petition. If that happens, then the court will require an additional hearing, or hearings, to sort out the situation.

Because each case is different, there’s no set standard for the amount of time or number of hearings a case will take to be settled. On average, you can expect the process of getting a court order to remove a personal representative to take between three to six months. In certain situations, such as where you are able to provide evidence that the personal representative is stealing assets or jeopardizing the value of the estate, the court might take more immediate action.

It’s important to keep an eye on the progress of the case, especially if you’re expecting an inheritance.

Be proactive. Seek the help of an experienced probate attorney if you suspect things related to the estate aren’t being handled correctly. Waiting to take action can jeopardize the estate and your loved one’s legacy. (Once money is spent or things have been stolen, it’s usually pretty hard to get it back.)

If you need help petitioning to remove an ineffective personal representative or trustee, please contact our office.

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  • 22
    Jul 15
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3 Ways to Reduce the Stress of a Conservatorship

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3 Ways to Reduce the Stress of a ConservatorshipThe illness, incapacity or death of a loved one is certainly an emotional blow to a family. Additional stress can come from disputes regarding the conservatorship of loved ones – especially when things don’t go smoothly.

A conservatorship deals with money, which can be stressful on its own. A conservator has many responsibilities in the position. In addition to managing the incapacitated person’s affairs, the conservator is responsible for keeping detailed accounting records and for providing annual reports to the courts that detail the protected person’s assets.

Here are three ways to reduce the stress of serving as conservator:

  1. Keep all financial accounts separate.
  2. Never use the money for personal expenditures.
  3. File annual accountings with the court.

Of course, there’s a fourth tip as well: Hire a qualified CPA or probate law firm to help you keep track of the conservatorship assets. This is often the best way to reduce stress in a conservatorship. It will give you the personal confidence that things are being done correctly, and will reduce your risk for personal liability.

Being a conservator is a detail-oriented job, and one that involves providing for the needs of the incapacitated person while keeping track of all income and expenditures. At the same time, family members or other involved parties may have concerns about how the conservator is fulfilling his or her responsibilities. They may wonder if conservator is making bad choices or they may even suspect the conservator of stealing money from the protected person’s accounts.

Wherever money is involved, emotions can run high (as can temptation). And since a conservatorship involves money management for a protected person, conservators need to take care to understand their responsibilities, and follow them. At the same time, family members or involved parties need to be aware of potential mistakes or, worse, misdoings.

If, for example, a conservator squanders money reserved for the care of the protected person, the family or involved parties may feel they need to call the police for assistance. But in these instances, the police will usually not take any action, stating that it is a “civil matter”. Such situations then must be handled through probate court.

If you suspect something is amiss with a conservator, do what you can to gather evidence about the situation to make sure the conservatorship is being handled properly. If the conservator is mishandling the estate, enlist the assistance of an experienced probate attorney to resolve the situation and, if necessary, recover lost funds or assets.

Remember, it is natural to feel some stress if you’re involved in a court proceeding involving a conservatorship. You are likely unfamiliar with particular court rules and laws as well as uncertain of how to deal with judges and lawyers.

But you’re not alone. If you have a loved one who needs the assistance of a conservator or have been appointed as a conservator, it’s important to consult with an experienced probate attorney.  We’re here to help – and to put your mind (as well as that of the protected person) at ease.

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  • 08
    Jul 15
  • 2

How to Petition for Emergency Conservatorship

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How to Petition for Emergency ConservatorshipAs loved ones age they may need help managing their finances or legal matters.

A durable general power of attorney can be a great tool for helping older loved ones when they get to the point that they need help. Simply put, it’s the written authorization to represent or act on another’s behalf in private affairs, business, or some other legal matter. A durable general power of attorney is good in many situations, such as selling a car or home. The durable general power of attorney can give others the legal rights to perform or assist with any legal acts that the person covered under this power of attorney would do for him or herself.

In certain situations, however, a general power of attorney either is not available or is perhaps insufficient to the situation. In those cases, you may need to obtain a conservatorship.

First, let me define conservatorship for you. A conservatorship is a court proceeding that appoints a person or entity (such as a private fiduciary – a fiduciary is a legal or ethical relationship between two or more parties.). This person or entity will have the authority to manage the affairs of a minor or of an incapacitated adult who is unable to manage his or her property or financial matters.

Let’s look at a few situations where a power of attorney may have limited usefulness:

  • The person listed as the agent on the power of attorney turns out to be dishonest; this person may be stealing money or otherwise mismanaging assets.
  • The person listed as the agent may be unavailable to fulfill the role of power of attorney.
  • The power of attorney is somehow invalid.
  • The family is fighting over who should control the assets.

If a conservatorship is needed urgently for the above or other reasons, you can petition the courts for an emergency conservatorship.

You may have an emergency situation if your loved one’s bills are not getting paid, if your loved one is making poor financial decisions or if someone is stealing money or taking advantage of your loved one’s financial situation.

A hearing will be scheduled either within a few weeks or within a few days, depending on whether you can prove that there is an emergency.

If you are seeking to remove a current conservator who is either abusing power or mishandling assets, you must provide evidence of this to the court. A probate or litigation attorney can help you get the evidence you need to establish your case.

If you’re unable to provide evidence to prove that the situation is an emergency, the court will schedule your hearing as it fits into its schedule, which may take several weeks.

If the court hearing needs to be made immediately, then the court will treat it as an emergency and appoint someone without giving the other interested parties an opportunity to appear.  A follow-up hearing will then be scheduled to ensure that everyone involved is given due-process rights and allowed to contest the conservatorship if it’s felt to be necessary.

Probate courts are familiar with emergency situations. They are there to help. Remember that you have options. With the assistance of an experienced probate attorney and the probate courts, you can get help resolving the situation.

If you have questions about an emergency conservatorship, give us a call. We’re here to help.

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  • 24
    Jun 15
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Handling Emergencies in Guardianships and Conservatorships in Arizona

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Handling Emergencies in Guardianships and Conservatorships in ArizonaIf you notice certain changes in an aging family member, it might be time to seek outside help. When a loved one can no longer make intelligent decisions about his or her healthcare, housing, finances or legal matters an emergency guardianship or conservatorship may be the solution.

Emergency guardianships and conservatorships are legal mechanisms created under the direction of the court to assist a person who has become incapacitated or debilitated.

The roles of guardian and conservator in Arizona are similar but distinct.

  • Guardianships concern specifically healthcare, living arrangements and other personal issues.
  • Conservatorships  deal with financial decisions.

A guardianship or conservatorship may be necessary if your loved one has a debilitating condition such as dementia and someone needs to step in immediately to take care of things. For example, if your loved one is not paying bills, or is wasting money, a conservator might be appointed to assume these financial decisions and responsibilities.

On the other hand, a guardian might be appointed if your loved one is continuing to drive even though it’s dangerous. Similarly, if your loved one is no longer safe at home but refuses to move, you may need to be appointed as guardian to make this decision concerning where your loved one should live.

Sometimes the court needs to get involved even when there is a healthcare power of attorney or general power of attorney. For example, I represented a family of three brothers whose mother was in hospice. One of the brothers was granted power of attorney for health care, and his mother’s living will provided him with the authority to act for her. But without communicating to his brothers, this son put the mother in a hospice where food and fluids were withheld, contrary to the mother’s wishes. (Can you imagine? This older lady was able to communicate that she wanted to eat and drink but the son instructed the hospice to withhold all food and fluids.)

The two brothers learned of their mother’s situation and came to her aid. Within 72 hours of contacting me, we were able to work with the probate court and appoint one brother as temporary guardian. He restored care to the mother, taking her out of an untenable situation and ultimately saving her life.

I’ve also helped clients in cases where an emergency conservatorship was necessary to protect the financial health of a loved one when someone was misusing or stealing money.

Every situation is different.
Searching for solutions can be incredibly frustrating and difficult.
But you don’t have to do it alone. Working with an experienced attorney, you’ll take comfort from knowing there is a solution to your situation.

Since 1998 I’ve been helping clients resolve both simple and complex issues and have helped them find resolution and peace of mind. We’d love to help you, too.

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  • 06
    May 15
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Pitfalls of Estate Planning: When Assets Are Used for Personal Benefit

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When Assets Are Used for Personal BenefitA trustee must never use the assets of a trust for personal benefit (unless this is specifically permitted by the trust). There’s really no wiggle room here. Trustees are held to the highest legal standards.

If you’re serving as a trustee, conservator or guardian, it’s important to clearly understand the duties of your position to be certain that you are performing your duties correctly and to protect yourself and reduce your liability in case of error.

Most cases where assets are mismanaged involve trusts. This is because trusts are normally unsupervised. As a result, it’s not uncommon for a trustee to neglect providing beneficiaries with annual accountings or to keep detailed bookkeeping records. Laws vary by states, but in Arizona, current law requires that a trustee give annual accountings and provide beneficiaries sufficient information to protect their interests.

Some trustees, unfortunately, take the breach of duty further and use an estate’s funds for their personal use. Taking family vacations, buying cars or paying off a personal mortgage are all examples where a trustee has breached fiduciary duty by misusing trust assets.

Here are the three biggest mistakes trustees make when managing trust assets:

  1. Failing to keep records.
  2. Taking unauthorized personal “loans” from the trust.
  3. Using assets for personal use – and thinking they won’t get caught.

A trustee who mismanages trust assets—whether intentional or unintentional—can face severe legal consequences. But you should know that if you’re serving as a trustee and don’t understand your responsibilities and duties, you don’t have to do it alone. An attorney with experience in trust management can help you avoid making costly mistakes and ensure that you’re aware of your responsibilities.

From the other side, if you’re a beneficiary and you suspect the trustee is mismanaging assets, don’t wait to take action. Seek legal counsel from a skilled probate attorney.

Settling an estate is a complex process. Probate court offers resources and recourse for those who are working to settle a loved one’s estate. We’d love to help make this process easier for you and your family. Give us a call with any questions about how you can properly manage a trust, and what you can do when trust assets are being mismanaged.

In the next post, we’ll look at how to deal with estate conflict in probate disputes.

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  • 15
    Apr 15
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Estate Planning: What Is a Guardianship?

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What Is a GuardianshipAs one generation matures another one needs care. Children are suddenly faced with dealing with their aging parents. This shift of roles, however natural it may seem, can be difficult. Illness, injury or long-term condition can leave a parent or loved one needing a little (or a lot) of extra help.

Legal guardianship may be necessary to allow you to help your loved one(s) make the legal, financial and healthcare decisions that are needed for their well-being.

A legal guardianship comes with a number of responsibilities. First, let’s define a few terms:

Guardianship. The legal right given to a person who will be responsible for assisting a person who is deemed to be fully or partially incapable of providing for him- or herself.

Guardian. The person granted guardianship over an incapacitated person

Ward (called an Incapacitated Person in Arizona). A person who is deemed to be fully or partially incapable of providing for him- or herself.

A guardian makes decisions about how the ward lives. These decisions include:

  • It’s important to make sure your ward is getting regular, healthy meals. Malnutrition is common in the elderly.
  • Doctors’ appointments, administering medication, ensuring the ward gets regular checkups are all an important part of guardianship.
  • If your loved on is not safe living alone, it is the guardian’s responsibility to arrange and pay for housing from the estate funds or government benefits. (The guardian is not personally responsible for paying for this expense out of pocket.)
  • Annual reporting. Filing annual guardian reports with the court is also one of a guardian’s responsibilities.

The guardian should assist the ward in maintaining as much independence and autonomy as possible, and should consider the ward’s value system, religious beliefs, wants and desires when making decisions on the ward’s behalf.

Guardianship has its limitations, and it certainly isn’t a magic wand. As a guardian, you cannot force your ward to take medications or to be more compliant. But you can make a difference in the overall care of a ward. And in especially tough situations a guardian can work with the courts to get a court order to make sure the ward in question gets the care and support needed.

Acting as guardian for an aging parent or loved one is an important role. Loved ones may need your help with the most intimate care as they age, which can be demanding and draining. And fraught with uncertainty regarding your responsibility and your ability to take action.

If you have any questions about legal guardianships, I’d love to help. Leave a comment below or contact our office.

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  • 04
    Feb 15
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What are the Duties of a Personal Representative?

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What are the Duties of a Personal RepresentativeA good estate plan covers key life decisions such as what happens to your home and other assets if you die. It also addresses who will care for your children and financial assets if you pass away. Your personal representative will be the one to make the necessary decisions to carry out your wishes.

The role of personal representative is a big responsibility. Settling the estate of a deceased person requires attention to detail. It’s important to select someone who is qualified for this position regardless of your net worth.

Specific duties and responsibilities can vary slightly from state to state. I practice in Arizona, but in this two-part overview, you’ll be able to get a sense of the duties of a personal representative, regardless of where you live in the United States.

  1. Act as personal representative. Perform fiduciary duty of fairness and impartiality to the beneficiaries and to the creditors, to be cautious and prudent in dealing with the state assets.
  2. Gather, control and manage estate assets. This is not moving into the deceased parent’s house and taking over assets for personal use. The personal representative oversees the execution of the will and makes sure that the assets are distributed according to the will.
  3. Provide notice of the appointment. You will need to notify your state’s revenue department and all of the heirs and devisees that you have been appointed. These heirs and devisees have four months to contest the probate.
  4. Provide notice of the admission of the will to probate. This is a form that gets filed with the court and delivered to those involved in the estate. It explains the duties and responsibilities of a personal representative.
  5. Mail copies of the order to the personal representative. You must mail copies of the order to the personal representative to the heirs and devisees.
  6. File proof of compliance. A notarized statement must be filed with the court affirming that the order to the personal representative was sent out.
  7. Publish notice to creditors with the court. You will need to notify creditors that they have a certain period of time to file a claim and give them instructions on how to file and pursue being paid.
  8. Protect assets. It is your responsibility to secure and keep valuables safe.
  9. Determine whether there are any statutory allowances. Statutory allowances can include a homestead allowance, exempt property allowance and a family allowance.

We will continue with this list in our next post. This is an important part of estate-planning. It doesn’t have to be complicated, but it does help if you have a sense of what the roles and responsibilities of a personal representative are.

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