Legal elements that are proposed and put forth in other states are often considered in California, especially if such laws would benefit and enrich the state. Here is the latest effort to rope in private wealth from the Phoenix area:
Arizona Probate Courts could start managing incapacitated individuals health care and finances based on how much money they have and how long they expect to live if the Supreme Court accepts recommendations in a report being presented next week.
A committee weighing Probate Court reforms is calling for new rules to reduce fees, strengthen accountability and protect the assets of people deemed too ill to care for themselves.
Chief among recommendations in the committees final 432-page report is a requirement that judges conduct sustainability reviews weighing potential future costs against existing assets.
If adopted, the change means the courts would for the first time consider how much money someone has when deciding how much of that money to spend on care and other services.
The current lack of attention to available funds has led to cases of peoples assets being drained to pay for the services of court-appointed lawyers or fiduciaries, which manage an incapacitated persons health care or finances.
The probate-reform committee, made up of judges, lawyers and fiduciaries, was formed last year by Arizona Chief Justice Rebecca Berch following accounts in The Arizona Republic detailing how people placed under the courts protection were billed for hundreds of thousands of dollars in attorney and fiduciary fees.
Judges charged with overseeing the cases rarely stepped in to limit the fees.
The committees report will be presented Monday to the Arizona Judicial Council, a panel of the states top judges that establishes statewide court rules and sets the courts legislative agenda.
Other committee recommendations would establish fee guidelines, require court-appointed lawyers and fiduciaries to submit budgets, create a training program for probate judges and implement new processes for monitoring incapacitated adults under the courts care.
Some say these combined methods have never before been tried in any Probate Court and represent a new way of doing business.
If these (rules) are adopted, it would be a new era, said Arizona Court of Appeals Judge Ann Timmer, chairwoman of the probate committee.
This is untested, Timmer added. This is the best way not only to get improved oversight but head off conflicts.
The committees report identified several deficiencies in judicial oversight of probate cases:
– Judges often lack experience in probate cases. Judges, court-appointed attorneys and court investigators are not required to participate in training.
– There are no procedures requiring visitation of court wards by neutral parties. There are no reports to ensure that guardians or conservators are doing their jobs.
– The court lacks resources to provide needed protection to incapacitated adults.
– Alternative dispute resolution such as mediation is not used to avoid costly legal battles.
In all, the report makes dozens of recommendations to improve Probate Court training and the monitoring of cases. It also seeks to give people a better sense of the costs and issues facing them in the courts.
Many of the recommendations were initially made to the Arizona Judicial Council in October.
The council postponed decisions on most recommendations and asked the committee to come back with specific plans for funding and implementing the measures.
For instance, the committee initially proposed annual visitations to detect when wards are abused or neglected. The council asked the committee for an alternative given the courts limited resources.
As part of a triage system, the committee proposed an assessment form to be filled out by court investigators to help identify at-risk wards.
It also suggested using court volunteers, such as students studying social work, nursing or law, to conduct unannounced visits. The annual cost for a statewide visitation program could be $300,000.
One of the key recommendations would require fiduciaries to submit a budget showing costs for their services to the court within 90 days of taking over a case.
The budget was first introduced in a bill passed by the state Legislature this year to strengthen oversight of the Probate Court, but it was later removed.
Currently, fiduciaries dont have to provide an accounting of expenses until a year after they are appointed and after the money is spent.
That seems like a recipe for disaster to me, Timmer said.
In addition to proposing new rules, the committee created forms and schedules that judges could use to quickly evaluate whether someones finances are being used efficiently.
The new forms include a schedule of fees charged by fiduciaries that would be published online by the Supreme Courts licensing and certification division, which regulates fiduciaries.
A similar fee schedule would be required of court-appointed attorneys.
The forms would enable a judge overseeing a case to plug fees into a new spreadsheet ranking costs from minimum to maximum, according to the report.
To further reduce costs, the committee wants to give fiduciaries limited power to file some court documents, rather than having their attorneys do it. Those attorneys fees are billed to the adult receiving care. The proposal borrows a concept from state laws governing real-estate agents, who can prepare legal contracts for properties.
This is relatively groundbreaking, said Diana Clarke, probate counsel for Maricopa County Superior Court and a member of the committee. I dont think that is done anywhere else in the country.
The committee could not agree, however, on a rule that would require fiduciaries and others to submit an estimate of projected costs at the time they petition to be named conservator of an incapacitated adult.
Those in favor of so-called good-faith estimates said they would provide transparency and help reduce the sticker shock factor of fees. They also said it could cause someone to consider other options.
Those opposed said estimates would increase costs and would not be reliable. They said the inability to get accurate information could lead some to feel as if they have been tricked when they see the actual costs.
In its report, the committee asked the Supreme Court to carefully consider these estimates, which are not in use by any other court in the country.
Timmer said the combined rules would help judges evaluate the sustainability of an individuals health care and financial-management plans.
She said a mathematical formula for determining a persons longevity would aid in weighing whether costs could overwhelm an individuals assets.
But she warned that even if all of the changes are adopted, courts will need to be vigilant.
This cant just be the end-all and be-all, she said. We cant just do all of these things and not look back.