Category Archives: Removing Conservator

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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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Resolving Disputes Involving Guardianships and Conservatorships

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Resolving Disputes Involving Guardianships and ConservatorshipsDisputes involving guardianships and conservatorships can be confusing and overwhelming for most people. The single biggest mistake I see in this area is people not consulting a probate litigation attorney. An experienced attorney will not only be familiar with the applicable statutes and case law, but will also know the applicable probate rules. Here is what you need to know about resolving disputes involving guardianships and conservatorships.

Guardianships and conservatorships is one of those areas of law that the uninitiated simply cannot tackle alone. People serving as guardians or conservators find themselves in a position where they are expected to be an expert on a complex topic they likely know little about. This is fertile ground for anger, surprises, greed and revenge among heirs and family members. While some guardianship and conservatorship matters are settled peacefully and amicably among family members and heirs, many times the actions by the guardian or conservator can engender disputes and bad feelings.

I recently worked with a prominent family in the Phoenix area to help the adult children resolve a dispute about their mother’s money. It turned out that one sister who had been named trustee and financial (general) power of attorney was mismanaging funds. To rectify this, I helped the other siblings file for conservatorship. We were able to obtain copies of all the financial documents and track all the funds that had been held in the mother’s trust and LLC.

After examining the financial documents, we could then force the sister who had been serving as trustee and financial power of attorney to pay back the money she’d stolen from the trust and business. We then replaced her with a professional trustee. (My clients became co-conservators.) We resolved this dispute in a cost-effective and family-oriented manner while maintaining the family’s privacy, thus avoiding public drama that would have tarnished the family name and reputation.

Conservators and guardians make important decisions on behalf of a loved one. But if the conservator or guardian is not living up to the responsibilities of the position you do have options. A probate litigation attorney can help you assess your unique situation and give you direction.

If you are an heir or if you’re serving as a guardian or conservator and you’ve found yourself in a dispute, don’t wait and hope the problem will go away on its own. Enlist the help of a probate litigation attorney right away.

In our next post we will look at solving disputes that involve trusts. If you have questions about guardianships and conservatorships, or other probate issues, please comment below or contact our office.

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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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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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