Tag Archives: removal

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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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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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Petition for Removal of Personal Representative

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Hey, this is attorney Paul Deloughery. I’ve been practicing probate litigation since 2007. One of the things I often get asked to do is to remove a Personal Representative (also known as the Executor) who is not performing his or her duties. Read more here.

How do you remove a Personal Representative who has already been appointed by the court? You hire a good probate litigation attorney. And that attorney follows A.R.S. Section 14-3611 regarding the removal of a Personal Representative. The attorney will also look at all of the various duties of a Personal Representative and make a list of various ways in which the PR has failed to live up to the required standards.

Here is a list of common failings by a Personal Representatives that can support removal of that person:
1. Failing to provide the heirs with an Inventory and Appraisement within 90 days of being appointed.
2. Failing to sell the house.
3. Failing to fairly distribute the personal property.
4. Failing to file tax returns or pay the taxes.
5. Using the estate money for his or her own personal use. (also referred to as “stealing”)

The nerve-racking part to this is needing to wait. If you didn’t get the Inventory exactly 90 days after the PR was appointed, you can’t file a Petition for Removal of Personal Representative the next day. The courts are fairly forgiving at first. Being two months to provide the Inventory will warrant a status conference with the judge. It won’t be enough to remove the PR yet.

However, there is a tipping point. If the Inventory is late, AND there is evidence that the Personal Representative is not treating the heirs fairly (as required by the Will or statute), AND there is some evidence that the PR is using the estate money personally, then that is probably enough to justify having the court appoint a successor PR.

The best thing to do is to talk to a probate litigation attorney. If you have any questions, give us a call at 602-443-4888. We will listen to your specific situation and tell you your options.


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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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Recovering from Trustee Misconduct

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Recovering from Trustee MisconductBeneficiaries of a trust depend greatly on the trustee to act in the best interest of the beneficiaries and the trust.

Unfortunately, trustees don’t always live up to the duty and responsibility of their position. Beyond creating headaches for family members and other beneficiaries, such misconduct can rob them of their inheritance.

In previous posts we covered the actions that can led to the removal of a trustee [link to post on what qualifies trustee for removal] and how to petition the court to remove the trustee and appoint a successor.

After those important steps, how do you go get back the stolen or misused money? It all depends on whether you are able to trace where the money was sent, if it was spent or if it still exists in some form. Let’s look at an example:

If a trustee used money from the trust to buy a new house, and if that house has not been sold or transferred to someone else, you can get a court order to freeze the property and eventually have it transferred back to the trust.

If the money is gone, there are three ways to recover funds:

  1. Surcharge. This applies if the trustee is also a beneficiary of the trust. In this situation, the former trustee’s inheritance from the estate can be reduced by the amount of any judgment the court passes against him or her. To have a surcharge ordered on a former trustee, you must file what’s known as a “Petition for Surcharge” with the probate court.
  2. Seize assets. If you’re able to trace the trustee’s spending to existing assets (cars, jewelry or other property), or if you’re able to show bank statements showing cash the trustee’s withdrawals from estate funds at ATM machines, the court can place a judgment against the trustee, making it more likely that you will get the money back. If the trustee has spent money on intangible purchases such as vacations, it will be much harder to get the money back.
  3. Personal refund. If the trustee has other personal assets (such as a house or bank accounts), the court can order the former trustee to turn over those assets to compensate for the value taken from the trust.

The process of getting the money returned can be lengthy. It can take from three to six months or more to settle a case recovering losses. The court process involves gathering evidence, and filing a petition with the probate court (this is all part of the steps necessary to remove a trustee).

After the court determines the amount of damages caused by the former trustee, the new trustee or other beneficiaries can then request the court to make further orders. To give an example, let’s say that a former trustee, Roger, owned a house, which used to be owned by the trust. After Roger has been removed from the position of trustee, the court can order that the house belong again to the trust. An attorney for the trust can then get a certified copy of the order and record the ownership of the property with the county recorder in the county where the property is located.

If you’re dealing with a trustee who is mishandling a trust, don’t wait to seek help. An experienced probate litigation attorney can walk you through the tricky and complicated petitioning process. It’s important to have someone knowledgeable on your side who knows the law and the court system.

Your attorney should work closely with you and the court to help you recover lost funds that are justly yours. The probate courts are there to help you and your family. Remember to act quickly and seek the assistance of an attorney. This will increase the likelihood that you will recover your inheritance.

Have any questions about recovering from trustee misconduct? Give us a call. We’d love to help.

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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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