Category Archives: Incapacitated Loved One

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An elderly person such as this is more susceptible to financial exploitation from inheritance impatience because she is loney, depressed, and lacks the ability to protect herself.

Inheritance Impatience

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Recently, I came across some news articles discussing the term “Inheritance Impatience.” I had never heard this term before. Inheritance Impatience is a form of financial exploitation of the elderly. An example would when when an adult child pressures mom or dad to get their inheritance now (rather than waiting for the parent to die). Sometimes the adult child actually helps speed up the parent’s death (by withholding food or medical care). Now that I have a label it, I realize that we actually see this sort of thing happening too often.

The problem is this: The parents are at such an age that their children start thinking about what they will inherit. In fact, sometimes they get so excited that they start making plans far ahead of actually receiving the money. And too often I witness kids who decide that they can take matters into their own hands. These cases can be from mild to extreme as you might imagine but more frightening are the more subtle ways of expediting the transition from this life. Family members have commenced upon their own selfish acts such as withholding food and medical care, or choosing a nursing home that is known to provide sub-par care with discounted rates.

How can you prevent this happening to your own parent?

  • Make sure your parents have a revocable trust that becomes irrevocable when one of them passes away or becomes incapacitated. That prevents the surviving spouse from being pressured into making changes by an unscrupulous family member or caretaker.
  • Make sure the trust has a strong Trust Protector who can quickly remove and replace a trustee in case an impatient family member gets appointed as trustee.
  • Name a neutral third party as trustee when the parent can no longer effectively protect himself or herself. (In Arizona we call these companies licensed fiduciaries.)
  • Make sure to visit your parents regularly, or have someone who you trust that would be able to check in on your parents’ well being. Don’t just rely on the one family member or caretaker who happens to live close to your parents.
  • Make sure that all adult children have copies of estate planning documents. If there is a pattern of sharing all estate planning documents, then it looks more like undue influence if a set of documents if kept a secret from the rest of the family. (And undue influence can be a way of getting a court to invalidate legal documents.)

Just by being aware of this issue, you can be on the lookout for signs of financial exploitation or “inheritance impatience.” If you believe a vulnerable adult is being financially exploited or physically abused, call Adult Protective Services. They will investigate and take action as appropriate.


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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.


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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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How to Remove a Guardian

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How to Remove a GuardianIt’s hard watching loved ones age. Their loss of independence can come as quite a blow for their families, and such challenges can become even more difficult if the guardian trusted with the care of a loved one is not fulfilling the responsibilities of the position.

A guardian is a person appointed by the court to make decisions about a protected person’s well-being (the “ward”).

A few of the responsibilities of a guardian, include ensuring safe and clean living arrangements, seeing to appropriate medical care (including compliance with taking of necessary medications)and determining whether or when family members or other people should be able to visit the ward.

If you suspect or see that something isn’t right with the guardianship, you should find an experienced probate litigation attorney to help you file a petition with the court or to contact Adult Protective Services (APS). Both of these bodies take the fulfillment of a guardian’s responsibilities very seriously.

Sometimes, a guardian might be doing an adequate job, but the court will remove a guardian and appoint a successor if it deems that another person is better able to act in the best interest of the ward.

Let’s look at an example where the need for a new guardian is not due to negligence but to circumstance. Sarah, a 75-year-old widow suffering from advanced dementia, is living in a nursing home. She needs a guardian to help with daily living and healthcare. Her son, who was originally appointed as her guardian, lives an hour away from his mother and has his own a busy work and family life. He’s finding it more and more difficult to remain as his mother’s guardian while also seeing to the care of his own family.

Sarah’s sister Beth, who is of sound mind and health, is a registered nurse who happens to live just 15 minutes away from Sarah’s nursing home. Beth visits Sarah daily and is able to be there quickly in an emergency. She has more time to devote to the care of her sister than does Sarah’s son.

It would be in the best interest of the court that Sarah’s son be removed as her guardian, though he has not abused his position, and to appoint Beth as the new guardian.  Sometimes another party is better able to care for the ward.

If a guardian is doing a poor job (whether intentionally or unintentionally), in most cases the court will simply to remove a guardian and appoint a successor. If the case is a more amicable transfer of responsibilities as in the example of Sarah and her son, the court will help with the legalities to relieve the original guardian of the responsibilities and transfer the legal authority to the new guardian.

If you’re serving as a guardian, focus on maintaining open lines of communication with your ward’s family and lawyer. Keep detailed records of both letters and reports of care and receipts for expenses paid for with the ward’s resources.

If you have questions about the process of removing a guardian, please contact our office. We’d love to help relieve you and your family of the burden of navigating the legal system as you seek care for your loved one.

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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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How to Remove a Personal Representative

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How to Remove a Personal RepresentativeSome situations in the handling of an estate warrant the removal and replacement of the executor (called a “personal representative” in Arizona) who’s been appointed by the court.

Although the person accepting the position agrees to comply with a list of laws and court orders, sometimes the representative falls short for some reason.

If the PR fails to perform the expected duties, then the deceased’s family and beneficiaries can seek help from probate court.

During the first few months of a representative’s term, when this person is learning what is required to administer an estate, the probate court is somewhat lenient. After a period of time, however, if the representative hasn’t fulfilled the required specified duties or followed procedures properly, the person may be removed as personal representative.

A PR can be removed for any of four basic reasons:

  1. If it’s in the best interest of the estate;
  2. If the personal representative had lied in the court proceeding leading to that person’s appointment as personal representative;
  3. If the personal representative disregarded a court order, has become incapable of discharging the duties of being personal representative, has mismanaged the estate, or has failed to perform any duty pertaining to the office of personal representative;
  4. If it is shown that the personal representative has intentionally disregarded the decedent’s wishes with regard to disposing of the decedent’s remains.

If you find that the PR is not fulfilling the duties of the position, the first thing you need to do is gather evidence. If it concerns the misuse of the estate’s funds, evidence can include documents such as copies of checks written to the personal representative or a copy of the deed showing that the PR transferred the decedents’ house to him or herself.

Evidence needs to be concrete. That is, the court usually does not accept situational evidence or hearsay as evidence to support removal of a PR. An example of hearsay might be a neighbor telling you that the PR said that he or she was going to steal the estate’s money or assets.

Evidence to support the removal of a personal representative can also include:

  • The fact that you have not received an inventory of the estate more than 90 days since the personal representative was appointed
  • The fact that the estate has been open for more than a year and the personal representative has not filed the required annual accounting.
  • The decedent’s house has not been listed for sale a year or more after the appointment of the personal representative.

In our firm, we frequently help families who need to remove personal representatives. It’s usually not a single incident that leads to this: In most cases the personal representative has done between five and 15 things incorrectly.

If you’re a personal representative and need help understanding and performing your duties, we can also help. If you need assistance in removing a personal representative to protect your loved one’s legacy, we can help with that, too.

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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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How to Avoid Disputes in a Conservatorship

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How to Avoid Disputes in a ConservatorshipWhen a loved one needs help managing finances or legal affairs, a conservatorship is often the best option. The conservator, usually a family member or trusted friend, has the authority to act in the interest of the protected person’s legal and financial affairs. As beneficial as this can be for the loved one, at times this transfer of power can lead to disputes over certain decisions and situations.

First of all, though, we should clarify what a conservatorship dispute is. For one thing, it differs from a guardianship dispute. A guardianship dispute concerns disagreements about who should be making decisions regarding where the incapacitated person lives and the healthcare he or she receives. A dispute about a conservatorship is a disagreement about who should be in control of money and assets.

Most disputes surrounding conservatorships, then, involve money matters. A conservator may even be abusing his or her authority. Examples could include stealing money or not acting in the best interest of the protected person. But far more common are the disputes arising out of mistakes – so it pays to be aware of some of the pitfalls.

There are three common mistakes people make in conservatorships:

Mistake 1: Failing to segregate conservatorship assets. All assets must be transferred from the incapacitated person’s name into conservatorship accounts.

Failing to separate the protected person’s cash and assets from the conservator’s personal cash and assets can have significant legal consequences. This is a very sensitive area: A conservator may unknowingly use funds from the conservatorship for his or her own use, or may even think it’s okay to use an incapacitated person’s funds for personal use. But the conservator must repay all funds to conservatorship accounts. In the State of Arizona, a conservator can also be fined an additional amount on top of the original sum taken. The conservator can also be disinherited from the protected person’s estate and be made liable for legal fees that have been incurred as a result of mismanaging funds.

Mistake 2: Failing to keep detailed records. The conservator must document and account for all transactions. Dealing in cash, withdrawing funds from an ATM, failing to keep receipts and not keeping track of time spent on the conservatorship are all accounting issues that can leave a conservator liable to accusations of mishandling the responsibilities of the position. If you don’t keep accurate records, you may be held personally liable for all money that isn’t accounted for.

Mistake 3: Failing to comply with court orders. As a conservator, you are responsible for filing an inventory, filing a credit report, submitting a budget and performing annual accountings of the estate. If you fail to comply with the court’s orders and the conservatorship statute, you as conservator may also risk being removed from your position.

The best way to avoid making these mistakes is to be aware beforehand of all the responsibilities and requirements of being a conservator. If you’re not good with recordkeeping and other detailed work, it may be best to defer the position to someone who’s better suited to such things. One option is to get a licensed fiduciary appointed.  A licensed fiduciary is a specially trained person who regularly serves as conservator and/or guardian in cases.

That said, remember that if you do accept the position of conservator, you don’t have to do it alone. Find an experienced probate attorney to help you understand the requirements of the position, and to comply with them.

If you have questions about how to resolve or prevent a dispute in a conservatorship, comment below or contact our office. We’d love to help.

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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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How to Handle Estate Emergencies After a Loved One Passes Away

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How to Handle Estate Emergencies After a Loved One Passes AwayDealing with the death of a loved one is always difficult. But death isn’t always the hardest part for the survivors. Many family members are surprised by the challenges and conflicts that arise after the funeral when the family works to settle the estate. If you find that you cannot resolve a conflict regarding your loved one’s estate, you may need to seek assistance from an experienced probate attorney.

I’ve worked with many families in which bickering siblings made emotionally charged and hasty decisions when they distributed the personal property of a deceased parent. It often ended in chaos. Often, I’ve found that executors or trustees grossly mismanage bank accounts and other assets, and consequently deprive remaining family members of their portions of their parent’s legacy.

Naturally, everyone wants the administration of a deceased person’s property and money to be orderly and methodical. But if it isn’t, and if you feel the situation is on the verge falling apart or has already deteriorated into an estate emergency – through misunderstandings or power struggles or other complicated interpersonal relationships – you have two legal options:

  1. Get a personal representative or executor appointed by the court (if one hasn’t already been appointed), or
  2. Petition for an immediate protective order from the court (if the appointed representative or executor is mismanaging the estate).

The biggest mistake I see families make when they try to resolve arguments about distributing their deceased loved one’s belongings and property is to take the law into their own hands. It’s vitally important that you go through proper legal channels to handle an estate. This avoids later flare-ups and also ensures an orderly distribution of assets and legacies. Take these essential steps:

  1. Secure the estate’s property until an executor or personal representative is appointed. If necessary, enlist the help of a third-party fiduciary to do this by being appointed as a Special Administrator. (The police will not intervene in family-estate issues.)
  2. File for an immediate protective order from the court with the assistance of an experienced probate attorney.
  3. Have a representative or executor appointed to manage the estate.

With a qualified representative or executor is in place an estate can be settled according to the will or trust that a loved one has left in place. Without quick action and the help from a special administrator, you risk a delay in probate proceedings and the disappearance of personal property.

If, after your loved one has died, you find that his or her estate is not being administered fairly or methodically, you may have an emergency on your hands. Be prepared to take immediate action if you suspect foul play or mismanagement of personal property in these instances. Talk to a probate lawyer right away.

Delayed action may leave you with no inheritance and no recourse. Working with an experienced estate attorney will not bring your loved one back, but it will ease your mind knowing that your late loved one’s wishes will be carried out.

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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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What Is a Guardianship?

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What Is a GuardianshipSince life expectancy has increased over the last two decades., a growing group of Americans will likely need some kind of long-term assistance. An important part of preparing for the future should you become unable to care for yourself is designating a health care agent and (if needed) a legal guardian. Having a health care power of attorney can usually avoid the need for someone to get appointed as a guardian through the court system. However, sometimes despite your best attempts at planning, someone will need to go to court and be appointed as your guardian.

A legal guardianship is a legal action in which someone is appointed by a court as a guardian to make decisions regarding healthcare and personal well-being for another person (who, in legal terms, is referred to as an “Incapacitated Person” or ward). These decisions can include living arrangements, medical care and whether the family should be able to visit.

Guardianship is a big responsibility, and it can sometimes be challenging. For example, I once represented a man who was caring for his mother as her legal guardian. They both lived in the Phoenix area. This man’s brother and sister, who lived in Michigan, wanted their mother to move out to live with them. Their mother was being well taken care of and was happy in Phoenix. This could have proved difficult, with different children wanting different things for their parent. But through working with my client on aspects of his guardianship, we were able to arrange a visitation schedule for the family, similar to child-custody arrangements common in divorce situations.

Guardianship is not that well-known a function among the general public. And common misperceptions and misconceptions exist.

• One is that the guardian is legally obligated to use personal resources to support the ward. This is incorrect. A guardian’s legal obligation is to use the ward’s resources to support the ward, not the guardian’s personal assets.

• Another is that the guardian assumes liability for the actions of the ward. This is not true except in cases where, say, the guardian gives a car or a gun to the ward. If the ward crashes the car or shoots someone with the gun, the guardian can be held liable if the guardian should have known that allowing the ward to have the car or gun was dangerous.

A guardian is required to sign a document called an Order to Guardian and Acknowledgement, which outlines the guardian’s responsibilities. A guardian should this document carefully and refer to it during the guardianship to prevent errors, and ensure that all responsibilities are being followed.

Here are two common mistakes that many guardians make:

  1. Failure to file an annual guardian’s report with the court. If you do not file this report, you will have to attend a hearing and explain why the report was not filed.
  2. Failure to restrict access to family and others when appropriate. This can justify removal of the guardian if the guardian is acting out of spite or maliciousness (as opposed to protecting the ward from people who may be dangerous).

As we age, our needs change. A health care power of attorney is an important part of a well-planned estate to make sure a person’s needs will be met as they arise. But sometimes this document can’t be found, or there is a dispute over who should be making the decisions.  In that case, someone needs to go to court to be appointed as a guardian. Just as it can be a delicate situation to consider making a will or plan an estate, it can be difficult to approach one’s parents about needing help now or in the future. It’s important to be proactive and address these issues sooner rather than later.

That’s where you come in. Remind your parents that you care about them and that you want to do what’s best to promote their health and well being, both today and in the months and years to come. And sometimes you need to make the tough call and get appointed as guardian even if your mom or dad does not want to give up control over their personal or health care decisions.

Remember that you aren’t alone. This is a common situation faced by adult children caring for their elderly parents.

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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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How to Get a Physician’s Report for a Guardianship or Conservatorship

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How to Get a Physician’s Report for a Guardianship or ConservatorshipCaring for an aging parent or loved one can be challenging. Especially when one or both parents become unable to care for their health and finances. In these situations, it may be necessary to seek a guardianship or conservatorship to help your parents get the care and support they need.

Obtaining a physician’s report is an important step in applying for guardianship or conservatorship. In the State of Arizona, a physician’s report can be completed by a physician, a registered nurse, a psychiatrist or psychologist. The content of the physician’s report (which varies from state to state) will be used to determine whether the situation requires a guardianship or conservatorship.

Here are three important steps you need to take before the court can appoint a conservator or guardian:

  1. Take action. If a loved one is not paying bills, starts to make poor financial decisions or isn’t receiving the healthcare he or she needs, you should be proactive. Learn more about what you can do to help. Frequently aging parents will resist a child’s urging to get help. But be persistent. You are their best advocate.
  2. Get a physician’s report. If a parent refuses to be examined by a physician, you can enlist the support of a social worker or anyone else familiar with the situation by getting a statement about what’s going on. The court can use this statement to appoint a physician or other professional to make an evaluation.
  3. Prepare for a court hearing. Petitioning for guardianship or conservatorship requires a lot of paperwork. Remember to include the physician’s report and other supporting documentation. It’s much easier to spend a little extra time preparing for the hearing than dealing with the frustration and delay of rescheduling a hearing because you didn’t have all the necessary paperwork. Make a checklist of what needs to be included; if you are working with an attorney, the attorney will help with the details.

If you’re seeking a guardianship or conservatorship for a loved one, or if you’re concerned about a current guardian or conservator, it’s important to know how to get a physician’s report in order to establish your case.

If you have any questions about how to get a physician’s report or about guardianships or conservatorships contact our office. We’d love to help.

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