USA Statutes : arizona
Title : Trusts, Estates and Protective Proceedings
Chapter : PROTECTION OF PERSONS UNDER DISABILITY AND THEIR PROPERTY
14-5101 Definitions
In this title, unless the context otherwise requires:
1. "Incapacitated person" means any person who is impaired by reason of mental
illness, mental deficiency, mental disorder, physical illness or disability, chronic use
of drugs, chronic intoxication or other cause, except minority, to the extent that he
lacks sufficient understanding or capacity to make or communicate responsible decisions
concerning his person.
2. "Investigator" means a person who is appointed by the court under section
14-5308.
3. "Physician" means a person licensed pursuant to title 32, chapter 13 or 17.
4. "Protected person" means a minor or any other person for whom a conservator has
been appointed or any other protective order has been made.
5. "Protective proceeding" means a proceeding under the provisions of section
14-5401 to determine that a person cannot effectively manage or apply his estate to
necessary ends, either because he lacks the ability or is otherwise inconvenienced, or
because he is a minor, and to secure administration of his estate by a conservator or
other appropriate relief.
6. "Psychologist" means a person licensed pursuant to title 32, chapter 19.1.
7. "Registered nurse" has the same meaning as prescribed in section 32-1601.
8. "Ward" means a person for whom a guardian has been appointed. "Minor ward"
means a minor for whom a guardian has been appointed solely because of minority.
14-5102 Jurisdiction of subject matter; consolidation of proceedings
A. The court has jurisdiction over protective proceedings and guardianship
proceedings.
B. When both guardianship and protective proceedings as to the same person are
commenced or pending in the same court, the proceedings may be consolidated.
14-5103 Facility of payment or delivery
A. Any person under a duty to pay or deliver money or personal property to a minor,
including monies related to the settlement of a civil claim, may perform this duty, in
amounts not exceeding ten thousand dollars per annum, by paying or delivering the money
or property to any of the following:
1. The minor, if the minor is married.
2. Any person having the care and custody of the minor and with whom the minor
resides.
3. The guardian of the minor.
4. A financial institution incident to a deposit in a federally insured savings
account in the sole name of the minor and giving notice of the deposit to the minor.
B. This section does not apply if the person making payment or delivery has actual
knowledge that a conservator has been appointed or proceedings for appointment of a
conservator of the estate of the minor are pending.
C. The persons, other than the minor or any financial institution under subsection
A, paragraph 4, receiving money or property for a minor are obligated to protect and
preserve the money and property unless there are not sufficient resources available to
provide for the minor's needs. In that event they shall apply funds as are necessary to
the support and education of the minor but shall not pay themselves except by way of
reimbursement for out-of-pocket expenses for goods and services necessary for the minor's
support.
D. Any balance not used and any property received for the minor shall be turned
over to the minor when the minor attains majority. Within three years after the minor
attains majority, the person may require an accounting.
E. Persons who pay or deliver in accordance with this section are not responsible
for its proper application.
14-5104 Delegation of powers by parent or guardian
A parent or a guardian of a minor or incapacitated person, by a properly executed
power of attorney, may delegate to another person, for a period not exceeding six months,
any powers he may have regarding care, custody or property of the minor child or ward,
except power to consent to marriage or adoption of the minor.
14-5105 Bond of guardian
Guardians coming into the possession or control of funds or other property of
persons under disability may be required by the court to furnish a bond in an amount and
under the conditions set forth for conservators in section 14-5411 and 14-5412.
14-5106 Disclosure requirements for proposed guardians and conservators; restrictions by local rules
A. Before being appointed as a temporary or permanent guardian or conservator every
proposed appointee, except entities referred to in section 14-5411, subsection B, shall
provide to the court, under oath, the following information:
1. Whether or not the proposed appointee has been convicted of a felony in any
jurisdiction and, if so, the nature of the offense, the name and address of the
sentencing court, the case number, the date of conviction, the terms of the sentence, the
name and telephone number of any current probation or parole officer and the reasons why
the conviction should not disqualify the proposed appointee.
2. Whether or not the proposed appointee has acted as guardian or conservator for
another person within three years of the petition and, if so, the number of individuals
for whom the proposed appointee is currently serving and the number of individuals for
whom the proposed appointee's appointment has been terminated within the three-year
period.
3. Whether or not the proposed appointee has a working knowledge of the powers and
duties imposed on a guardian or a conservator.
4. Whether or not the proposed appointee has acted within three years of the
petition in a fiduciary capacity pursuant to a power of attorney and, if so, the number
of persons for whom the appointee has so acted. If the proposed appointee has ever acted
in such capacity for the proposed ward or protected person, the proposed appointee shall
specify the date of execution of such power of attorney, the place where the power of
attorney was executed, the actions taken by the proposed appointee pursuant to such power
of attorney and whether or not such power of attorney is currently in effect.
5. Whether or not, to the best of the proposed appointee's knowledge, the proposed
appointee or any enterprise in which the proposed appointee has an interest is listed in
the registry pursuant to section 46-457.
6. Whether or not, within three years of the petition, the proposed appointee has
failed to file any report of guardian or conservatorship accounting for three months
following receipt of notice of delinquency.
7. Whether or not the proposed appointee has ever been removed as a guardian or
conservator and, if so, for whom and under what circumstances.
8. The nature of the proposed appointee's relationship to the proposed ward or
protected person, and how the proposed appointee met the proposed ward or protected
person.
9. Whether or not the proposed appointee or any enterprise in which the proposed
appointee has an interest ever received anything of value, exceeding a total of one
hundred dollars in any one year, by gift, devise or bequest from an individual or the
estate of an individual to whom the proposed appointee was not related by blood or
marriage and for whom the proposed appointee has at any time served as guardian,
conservator, trustee or agent, and, if so, the number of such occasions.
10. Whether or not, to the best of the proposed appointee's knowledge, the proposed
appointee or any enterprise in which the proposed appointee has an interest is named as a
personal representative, trustee, devisee or other type of beneficiary of any individual
to whom the proposed appointee is not related by blood or marriage and for whom the
proposed appointee has at any time served as guardian, conservator, trustee or agent and,
if so, the number of such occasions.
11. Whether or not the proposed appointee has an interest in any enterprise
providing housing, health care or comfort care services to any individual, and, if so,
the name and address of each such enterprise and the extent of each such interest.
B. The appointing court may impose restrictions or conditions on the appointment of
a guardian or conservator, or of a category of guardian or conservator, that it finds
necessary to provide for the appropriate care and supervision of its wards or protected
persons.
C. The court may, in its discretion, require proposed appointees to disclose to the
court, the investigator and the court-appointed attorney further details concerning the
information referred to in subsection A of this section, including, but not limited to,
with respect to other occasions in which the proposed appointee has acted as a guardian
or conservator, the following information:
1. The identities of the persons for whom the appointee has served as a guardian or
conservator.
2. The identity of the court making each appointment and the court case number.
3. The dates of service.
D. The court may, in its discretion, upon a showing of good cause place limitations
upon access by the public to any or all of the information disclosed pursuant to this
section.
14-5107 Military member power of attorney; definition
A. A military member who is a parent or guardian of a minor child or ward may
delegate to another person, for a period not to exceed one year, any powers the parent or
guardian have regarding care, custody or property of the minor child or ward, except the
power to consent to marriage or adoption of the minor child or ward.
B. For the purposes of this section, "military member" means an active duty member
of the army, navy, air force or marines, or a member of the reserve or national guard
engaged in the performance of official duties or functions under the authority of title
10 or 32, United States Code.
14-5108 Guardianship of foreign citizens
The court may appoint an adult as the guardian of a foreign citizen if all of the
following are true:
1. The foreign citizen is under twenty-one years of age.
2. The foreign citizen has a temporary visa issued by the United States.
3. The adult agrees to sponsor the foreign citizen in obtaining permanent resident
alien status in the United States.
4. The foreign citizen's parent, on behalf of the foreign citizen, filed a petition
for permanent resident alien status with the United States government and that parent is
now deceased.
5. The foreign citizen was under eighteen years of age at the time the petition for
permanent resident alien status was filed. 14-5201 Status of guardian of minor; general
A person becomes a guardian of a minor by acceptance of a testamentary appointment
or upon appointment by the court. The guardianship status continues until terminated,
without regard to the location from time to time of the guardian and minor ward.
14-5202 Testamentary appointment of guardian of minor
The parent of a minor may appoint by will a guardian of an unmarried minor. Subject
to the right of the minor under section 14-5203, a testamentary appointment becomes
effective upon filing the guardian's acceptance in the court in which the will is
probated, if before acceptance, both parents are dead or the surviving parent is adjudged
incapacitated. If both parents are dead, an effective appointment by the parent who died
later has priority. This state recognizes a testamentary appointment effected by filing
the guardian's acceptance under a will probated in another state which is the testator's
domicile. Upon acceptance of appointment, written notice of acceptance must be given by
the guardian to the minor and also to either the person having his care or his nearest
adult relation.
14-5203 Objection by minor of fourteen or older to testamentary appointment
A minor of fourteen or more years may prevent an appointment of his testamentary
guardian from becoming effective, or may cause a previously accepted appointment to
terminate, by filing with the court in which the will is probated a written objection to
the appointment before it is accepted or within thirty days after notice of its
acceptance. An objection may be withdrawn. An objection does not preclude appointment
by the court in a proper proceeding of the testamentary nominee or any other suitable
person.
14-5204 Court appointment of guardian of minor; conditions for appointment
The court may appoint a guardian for an unmarried minor if all parental rights of
custody have been terminated or suspended by circumstances or prior court order. A
guardian appointed by will as provided in section 14-5202 whose appointment has not been
prevented or nullified under section 14-5203 has priority over any guardian who may be
appointed by the court but the court may proceed with an appointment upon a finding that
the testamentary guardian has failed to accept the testamentary appointment within thirty
days after notice of the guardianship proceeding.
14-5205 Court appointment of guardian of minor; venue
The venue for guardianship proceedings for a minor is in the place where the minor
resides or is present.
14-5206 Court appointment of guardian of minor; qualifications; priority of minor's nominee; fingerprints
A. The court shall appoint as guardian a person whose appointment would be in the
best interests of the minor. The court may appoint a person nominated by the minor, if
the minor is fourteen years of age or older, unless the court finds the appointment
contrary to the best interests of the minor.
B. Before the court may appoint as guardian a person unrelated to the minor, the
court shall, in order to determine the applicant's suitability as a guardian, require the
potential guardian to furnish a full set of fingerprints to the court to enable a
criminal background investigation to be conducted. The court shall submit the completed
fingerprint card with the fee prescribed in section 41-1750 to the department of public
safety. The applicant shall bear the cost of obtaining the criminal background
information. The cost shall not exceed the actual cost of obtaining the applicant's
criminal background information. The department of public safety shall conduct criminal
history records checks pursuant to section 41-1750 and applicable federal law. The
department of public safety is authorized to submit fingerprint card information to the
federal bureau of investigation for a national criminal history records check.
14-5207 Formal appointment of guardian of minor; procedure
A. Any person interested in the welfare of a minor may petition the court for
appointment of a guardian. The court shall then set a hearing date. The petitioner
shall give notice of the time and place of the hearing in the manner prescribed by
section 14-1401 to:
1. A minor who is at least fourteen years of age.
2. The person who has had the principal care and custody of the minor during the
sixty days preceding the date of the petition.
3. Any living parent of the minor.
B. Upon hearing, if the court finds that a qualified person seeks appointment,
venue is proper, the required notices have been given, the requirements of section
14-5204 have been met and the welfare and best interests of the minor will be served by
the requested appointment, it shall make the appointment and issue letters on the
acceptance of the proposed guardian. In other cases the court may dismiss the
proceedings or make any other disposition of the matter that will best serve the
interests of the minor.
C. If necessary, the court may appoint a temporary guardian, with the status of an
ordinary guardian of a minor, but the authority of a temporary guardian shall not last
longer than six months.
D. If, at any time in the proceeding, the court determines that the interests of
the minor are or may be inadequately represented, it may appoint an attorney to represent
the minor, giving consideration to the preference of the minor if the minor is at least
fourteen years of age.
14-5208 Consent to service by acceptance of appointment; notice
By accepting a testamentary or court appointment as guardian a guardian submits
personally to the jurisdiction of the court in any proceeding relating to the
guardianship that may be instituted by any interested person. Notice of any proceeding
shall be delivered to the guardian, or mailed to him by ordinary mail at his address as
listed in the court records and to his address as then known to the petitioner. Letters
of guardianship must indicate whether the guardian was appointed by will or by court
order.
14-5209 Powers and duties of guardian of minor
A. A guardian of a minor has the powers and responsibilities of a custodial parent
regarding the ward's support, care and education. A guardian is not personally liable
for the ward's expenses and is not liable to third persons by reason of the relationship
for acts of the ward.
B. In particular, and without qualifying the foregoing, a guardian shall:
1. Become or remain personally acquainted with the ward and maintain sufficient
contact with the ward to know of the ward's capacities, limitations, needs, opportunities
and physical and mental health.
2. Take reasonable care of the ward's personal effects and commence protective
proceedings if necessary to protect other property of the ward.
3. Apply any available monies of the ward to the ward's current needs for support,
care and education.
4. Conserve any excess monies for the ward's future needs, but if a conservator has
been appointed for the estate of the ward, the guardian, at least quarterly, shall pay to
the conservator money of the ward to be conserved for the ward's future needs.
5. Report the condition of the ward and of the ward's estate which has been subject
to his possession or control, as ordered by the court on petition of any person
interested in the ward's welfare or as required by court rule.
C. A guardian may:
1. Receive monies payable for the support of the ward under the terms of any
statutory benefit, insurance system, private contract, devise, trust, conservatorship or
custodianship, and monies or property of the ward paid or delivered pursuant to section
14-5103.
2. Take custody of the person of the ward and establish the ward's place of
residence in or outside this state, if consistent with the terms of an order of a court
of competent jurisdiction relating to the detention or commitment of the ward.
3. If no conservator for the estate of the ward has been appointed, institute
proceedings, including administrative proceedings, or take other appropriate action to
compel the performance by any person of a duty to support the ward or to pay amounts for
the welfare of the ward.
4. Facilitate the ward's education, social or other activities and consent to
medical or other professional care, treatment or advice for the ward. A guardian is not
liable by reason of this consent for injury to the ward resulting from the negligence or
acts of third persons unless a parent would have been liable in the circumstances.
5. Consent to the marriage or adoption of the ward.
6. If reasonable, delegate to the ward certain responsibilities for decisions
affecting the ward's well-being.
D. A guardian is entitled to reasonable compensation for services as guardian and
to reimbursement for room, board and clothing personally provided to the ward, but only
as approved by order of the court. If a conservator, other than the guardian or one who
is affiliated with the guardian, has been appointed for the estate of the ward,
reasonable compensation and reimbursement to the guardian may be approved and paid by the
conservator without order of the court.
E. In the interest of developing self-reliance on the part of a ward or for other
good cause, the court, at the time of appointment or later, on its own motion or on
appropriate petition or motion of the minor or other interested person may:
1. Create a limited guardianship by limiting the powers of a guardian otherwise
conferred by this section. Any limitation on the statutory power of a guardian of a
minor must be endorsed on the guardian's letters.
2. Remove a limitation and issue revised letters.
14-5210 Termination of appointment of guardian; general
A guardian's authority and responsibility terminates on the death, resignation or
removal of the guardian or on the minor's death, adoption, marriage or attainment of
majority. Termination does not affect the guardian's liability for prior acts or the
guardian's obligation to account for the ward's monies and assets. Resignation of a
guardian does not terminate the guardianship until it has been approved by the court.
14-5211 Proceedings subsequent to appointment; venue
A. The court where the ward resides has concurrent jurisdiction with the court
which appointed the guardian, or in which acceptance of a testamentary appointment was
filed, over resignation, removal, accounting and other proceedings relating to the
guardianship.
B. If the court located where the ward resides is not the court in which acceptance
of appointment is filed, the court in which proceedings subsequent to appointment are
commenced shall in all appropriate cases notify the other court, in this or another
state, and after consultation with that court determine whether to retain jurisdiction or
transfer the proceedings to the other court, whichever is in the best interests of the
ward. A copy of any order accepting a resignation or removing a guardian shall be sent
to the court in which acceptance of appointment is filed.
14-5212 Resignation or removal proceedings
A. Any person interested in the welfare of a ward or the ward, if fourteen or more
years of age, may petition for removal of a guardian on the ground that removal would be
in the best interests of the ward, or for any other order that is in the best interest of
the ward. A guardian may petition for permission to resign. A petition for removal or
for permission to resign may, but need not, include a request for appointment of a
successor guardian.
B. Notice of a hearing on a petition for an order subsequent to appointment shall
be given to a ward who is at least fourteen years of age, the guardian and any other
person the court orders to receive the notice.
C. After notice and a hearing on a petition for removal or for permission to
resign, the court may terminate the guardianship and make any further order that may be
appropriate.
D. If, at any time in the proceeding, the court determines that the interests of
the ward are, or may be, inadequately represented, it may appoint an attorney to
represent the minor, giving consideration to the preference of the minor if the minor is
fourteen or more years of age.
14-5301 Testamentary appointment of guardian for incapacitated person
A. The parent of an incapacitated person may by will appoint a guardian of the
incapacitated person. A testamentary appointment by a parent becomes effective when,
after having given seven days prior written notice of intention to do so to the
incapacitated person and also to the person having his care or his nearest adult
relative, the guardian files acceptance of appointment in the court in which the will is
informally or formally probated, if prior thereto both parents are dead or the surviving
parent is adjudged incapacitated. If both parents are dead, an effective appointment by
the parent who died later has priority unless it is terminated by the denial of probate
in formal proceedings.
B. The spouse of a married incapacitated person may by will appoint a guardian of
the incapacitated person. The appointment becomes effective when, after having given
seven days prior written notice of intention to do so to the incapacitated person and
also to the person having his care or his nearest adult relative, the guardian files
acceptance of appointment in the court in which the will is informally or formally
probated. An effective appointment by a spouse has priority over an appointment by a
parent unless appointment by the spouse is terminated by the denial of probate in formal
proceedings.
C. This state shall recognize a testamentary appointment effected by filing
acceptance under a will probated at the testator's domicile in another state.
D. On the filing with the court in which the will was probated of written objection
to the appointment by the person for whom a testamentary appointment of guardian has been
made, the appointment is terminated. An objection does not prevent appointment by the
court in a proper proceeding of the testamentary nominee or any other suitable person
upon an adjudication of incapacity in proceedings under the succeeding sections of this
article.
14-5302 Venue
The venue for guardianship proceedings for an incapacitated person is in the county
where the incapacitated person resides or is present. If the incapacitated person is
admitted to an institution pursuant to order of a court of competent jurisdiction, venue
is also in the county in which that court sits.
14-5303 Procedure for court appointment of a guardian of an alleged incapacitated person
A. The alleged incapacitated person or any person interested in that person's
affairs or welfare may petition for the appointment of a guardian or for any other
appropriate protective order.
B. The petition shall state, to the extent known:
1. The interest of the petitioner.
2. The name, age, residence and address of the alleged incapacitated person.
3. The name, address and priority for appointment of the person whose appointment
is sought.
4. The name and address of the conservator, if any, of the alleged incapacitated
person.
5. The name and address of the nearest relative of the alleged incapacitated person
known to the petitioner.
6. A general statement of the property of the alleged incapacitated person, with an
estimate of its value and including any compensation, insurance, pension or allowance to
which the person is entitled.
7. The reason why appointment of a guardian or any other protective order is
necessary.
8. The type of guardianship requested. If a general guardianship is requested, the
petition must state that other alternatives have been explored and why a limited
guardianship is not appropriate. If a limited guardianship is requested, the petition
also must state what specific powers are requested.
C. On the filing of a petition, the court shall set a hearing date on the issues of
incapacity. Unless the alleged incapacitated person is represented by independent
counsel, the court shall appoint an attorney to represent that person in the
proceeding. The alleged incapacitated person shall be interviewed by an investigator
appointed by the court and shall be examined by a physician, psychologist or registered
nurse appointed by the court. The investigator and the person conducting the
examination shall submit their reports in writing to the court. In addition to
information required under subsection D of this section, the court may direct that either
report include other information the court deems appropriate. The investigator also
shall interview the person seeking appointment as guardian, visit the present place of
abode of the alleged incapacitated person and the place where it is proposed that the
person will be detained or reside if the requested appointment is made and submit a
report in writing to the court. The alleged incapacitated person is entitled to be
present at the hearing and to see or hear all evidence bearing on that person's
condition. The alleged incapacitated person is entitled to be represented by counsel, to
present evidence, to cross-examine witnesses, including the court-appointed examiner and
investigator, and to trial by jury. The court may determine the issue at a closed
hearing if the alleged incapacitated person or that person's counsel so requests.
D. A report filed pursuant to this section by a physician, psychologist or
registered nurse acting within that person's scope of practice shall include the
following information:
1. A specific description of the physical, psychiatric or psychological diagnosis
of the person.
2. A comprehensive assessment listing any functional impairments of the alleged
incapacitated person and an explanation of how and to what extent these functional
impairments may prevent that person from receiving or evaluating information in making
decisions or in communicating informed decisions regarding that person.
3. An analysis of the tasks of daily living the alleged incapacitated person is
capable of performing without direction or with minimal direction.
4. A list of all medications the alleged incapacitated person is receiving, the
dosage of the medications and a description of the effects each medication has on the
person's behavior to the best of the declarant's knowledge.
5. A prognosis for improvement in the alleged incapacitated person's condition and
a recommendation for the most appropriate rehabilitation plan or care plan.
6. Other information the physician, psychologist or registered nurse deems
appropriate.
14-5304 Findings; order of appointment; limitations; filing
A. In exercising its appointment authority pursuant to this chapter, the court
shall encourage the development of maximum self-reliance and independence of the
incapacitated person.
B. The court may appoint a general or limited guardian as requested if it is
satisfied by clear and convincing evidence that:
1. The person for whom a guardian is sought is incapacitated.
2. The appointment is necessary to provide for the demonstrated needs of the
incapacitated person.
3. The person's needs cannot be met by less restrictive means, including the use of
appropriate technological assistance.
C. In conformity with the evidence regarding the extent of the ward's incapacity,
the court may appoint a limited guardian and specify time limits on the guardianship and
limitations on the guardian's powers.
D. The guardian shall file an acceptance of appointment with the appointing court. 14-5305 Acceptance of appointment; consent to jurisdiction
By accepting appointment, a guardian submits personally to the jurisdiction of the
court in any proceeding relating to the guardianship that may be instituted by any
interested person. Notice of any proceeding shall be delivered to the guardian or mailed
to him by ordinary mail at his address as listed in the court records and to his address
as then known to the petitioner.
14-5306 Termination of guardianship for incapacitated person
The authority and responsibility of a guardian for an incapacitated person
terminates upon the death of the guardian or ward, a determination of incapacity of the
guardian, or upon removal or resignation as provided in section 14-5307. Testamentary
appointment under an informally probated will terminates if the will is later denied
probate in a formal proceeding. Termination does not affect his liability for prior acts
nor his obligation to account for funds and assets of his ward.
14-5307 Removal or resignation of guardian; termination of incapacity
A. On petition of the ward or any person interested in his welfare, the court may
remove a guardian and appoint a successor if it is in the best interests of the ward. On
petition of the guardian, the court may accept a resignation and make any other order
which may be appropriate.
B. An order adjudicating incapacity may specify a minimum period, not exceeding one
year, during which no petition for an adjudication that the ward is no longer
incapacitated may be filed without special leave. Subject to this restriction, the ward
or any person interested in his welfare may petition the court for an order that the ward
is no longer incapacitated and for the removal or resignation of the guardian. A request
for this order may be made by informal letter to the court or judge. Any person who
knowingly interferes with the transmission of this request may be found in contempt of
court.
C. Before removing a guardian, accepting the resignation of a guardian or ordering
that a ward's incapacity has terminated, the court, following the same procedures to
safeguard the rights of the ward as apply to a petition for appointment of a guardian,
may send an investigator to the residence of the present guardian and to the place where
the ward resides or is detained to observe conditions and report in writing to the court.
14-5308 Court appointed investigators; qualifications; duties
A. An investigator appointed by the court under sections 14-5303 and 14-5407 shall
have a background in law, nursing or social work and shall have no personal interest in
the proceedings.
B. The investigator shall conduct an investigation before the court appoints a
guardian or a conservator to allow the court to determine the appropriateness of that
appointment. As directed by the court, the investigator shall conduct additional
investigations to determine if it is necessary to continue the appointment.
C. In conducting investigations the investigator shall:
1. Interview the alleged incapacitated person or the protected person and the
proposed guardian or conservator.
2. Visit the alleged incapacitated person's or the protected person's current or
proposed place of residence.
3. Interview nursing home or care home care givers and the home's manager or
administrator.
4. Transport the alleged incapacitated person or the protected person as directed
by the court.
D. In conducting interviews under this section the investigator may examine any
court record, medical record or financial record that relates to the investigation.
E. As a condition of appointment as an investigator the court shall require the
applicant to furnish a full set of fingerprints to enable the court to conduct a criminal
background investigation to determine the applicant's suitability. The court shall
submit the completed fingerprint card to the department of public safety. The department
shall provide the applicant's criminal history record information to the court pursuant
to section 41-1750. The department of public safety shall conduct criminal history
records checks pursuant to section 41-1750 and applicable federal law. The department of
public safety is authorized to submit fingerprint card information to the federal bureau
of investigation for a national criminal history records check.
14-5309 Notices in guardianship proceedings
A. In a proceeding for the appointment or removal of a guardian of a ward or an
alleged incapacitated person other than the appointment of a temporary guardian or
temporary suspension of a guardian, notice of a hearing shall be given to each of the
following:
1. The ward or the alleged incapacitated person and that person's spouse, parents
and adult children.
2. Any person who is serving as guardian or conservator or who has the care and
custody of the ward or the alleged incapacitated person.
3. In case no other person is notified under paragraph 1 of this subsection, at
least one of that person's closest adult relatives, if any can be found.
4. Any person who has filed a demand for notice.
B. At least fourteen days before the hearing notice shall be served personally on
the ward or the alleged incapacitated person, and that person's spouse and parents if
they can be found within the state. Notice to the spouse and parents, if they cannot be
found within the state, and to all other persons except the ward or the alleged
incapacitated person shall be given as provided in section 14-1401. Waiver of notice by
the ward or the alleged incapacitated person is not effective unless that person attends
the hearing.
14-5310.01 Adult protective services workers; special visitation warrants
A. Adult protective services workers of the department of economic security charged
with responsibilities involving protection of incapacitated and abused, exploited or
neglected adults may present themselves before the court to apply for and obtain special
visitation warrants. The court shall limit such visitations to the residence of the
adult believed to be incapacitated and abused, exploited or neglected. Nothing in this
act shall be construed to mean that an adult is abused or neglected or in need of
protective services for the sole reason that he relies on treatment from a recognized
religious method of healing in lieu of medical treatment.
B. Upon showing by the affidavit of the protective services worker that consent to
entry for visitation to an adult believed to be incapacitated and abused, exploited or
neglected has been refused a special visitation warrant may be issued by the court for
the visitation of the residence of the adult.
C. The warrant shall be in substantially the following form:
County of _______________, state of ARIZONA, to any peace officer accompanied by an adult
protective services worker in the state of ARIZONA, proof, by affidavit attached hereto
and made a part hereof for all purposes, having been this day made before me (by person
or persons where affidavit has been taken) that there may exist a reasonable governmental
interest to determine if _______________, an adult, may be incapacitated and abused,
exploited or neglected. You are therefore commanded in the daytime to visit the
residence of _______________, an adult, located at _______________, in the county of
__________________, state of ARIZONA, and to visit ____________________ for the purpose
of making a determination if the adult is in need of protective services and what
services, if any, are needed.
Given under my hand and dated this ______________ day of _________, 19__.
(signature)
__________________________________
Judge of the superior court
(The endorsement on the warrant shall be:)
Received by us this __________ day of ______________, 19__, at the hour of
_____________ a.m./p.m.
A peace officer
Adult protective services worker
Department of economic security
(Return of the warrant shall be:)
We hereby certify that by virtue of the within warrant we visited _______________,
and visited his/her residence located at ______________, on the _________ day of _______,
19__, at the hour of ______ a.m./p.m. and found the following:
Dated this __________ day of ___________________________, 19__.
______________________________________ A peace officer_,__ o
______________________________________
Adult protective services worker
D. All warrants issued are returnable to the issuing judge within seventy-two hours
of issuance and shall thereafter be filed in the probate division of the office of the
clerk of the superior court.
14-5310 Temporary guardians; appointment; notice; court appointed attorney hearings; duties
A. If an alleged incapacitated person has no guardian and an emergency exists or if
an appointed guardian is not effectively performing the duties of a guardian and the
welfare of the ward is found to require immediate action, the alleged incapacitated
person, the ward or any person interested in the welfare of the alleged incapacitated
person or the ward may petition for a finding of interim incapacity and for the
appointment of a temporary guardian. No finding and appointment may be made without
notice, pursuant to section 14-5309, except as provided in subsection B of this section.
B. The court may enter a finding of interim incapacity and may appoint a temporary
guardian without notice to the proposed ward or the proposed ward's attorney only if all
of the following conditions are met:
1. It clearly appears from specific facts shown by an affidavit or by the verified
petition that immediate and irreparable injury, loss or damage will result before the
proposed ward or the proposed ward's attorney can be heard in opposition.
2. The petitioner or the petitioner's attorney certifies to the court in writing
any efforts that the petitioner or the petitioner's attorney has made to give the notice
or the reasons supporting the claim that notice should not be required.
3. The petitioner files with the court a request for a hearing on the petition for
the appointment of a temporary guardian.
4. The petitioner or the petitioner's attorney certifies that that person will give
notice of the petition, the order and all filed reports and affidavits to the
proposed ward by personal service within the time period the court directs but not in
excess of seventy-two hours following entry of the order of appointment.
5. The petitioner files a report from a physician or a psychologist detailing the
need for a guardian and the basis for the emergency unless the report is waived by the
court on a showing of good cause by a party to the action.
C. Unless the proposed ward is represented by independent counsel, the court shall
appoint an attorney to represent the proposed ward in the proceeding on receipt of the
petition for temporary appointment. The attorney shall visit the proposed ward as soon
as practicable and shall be prepared to represent the interest of the proposed ward at
any hearing on the petition.
D. Every order finding interim incapacity and appointing a temporary guardian
granted without notice expires as prescribed by the court but within a period of not more
than thirty days unless within that time the court extends it for good cause shown for
the same period or unless the attorney for the ward consents that it may be extended for
a longer period. The court shall enter the reasons for the extension on the record.
E. The court shall schedule a hearing on the petition for a finding of interim
incapacity and the appointment of a temporary guardian within the time specified in
subsection D of this section. If the petitioner does not proceed with the petition the
court, on the motion of any party or on its own motion, may dismiss the petition.
F. If the court orders the appointment of a temporary guardian without notice, the
ward may appear and move for its dissolution or modification on two days' notice to the
petitioner and to the temporary guardian or on such shorter notice as the court
prescribes. The court shall proceed to hear and determine that motion as expeditiously
as possible.
G. The hearing on a petition for the appointment of a temporary guardian shall be
held in the same manner as a hearing on a preliminary injunction. The court may order
the hearing on the petition for appointment of a permanent guardian to be advanced and
consolidated with the hearing of the petition for temporary appointment. If the court
does not order this consolidation any evidence received on a petition for temporary
appointment that would be admissible at the hearing on a petition for a permanent
appointment becomes part of the record and need not be repeated at a later hearing. This
subsection does not limit the parties to any rights they may have to trial by jury.
H. After notice and a hearing, if the court finds that a temporary guardian is
necessary and the provisions of this section have been met, the court shall make an
appointment of a temporary guardian for a specific purpose and for a specific period of
time of not more than six months unless the court extends this time period for good cause
shown.
I. A temporary guardian is responsible to provide the care and custody of the
ward. The authority of a permanent guardian previously appointed by the court is
suspended as long as the temporary guardian has authority. A temporary guardian may be
removed at any time. A temporary guardian shall make any report the court requires. In
all other respects, the provisions of this title concerning guardians apply to temporary
guardians.
14-5311 Who may be guardian; priorities
A. Any qualified person may be appointed guardian of an incapacitated person,
subject to the requirements of section 14-5106.
B. The court may consider the following persons for appointment as guardian in the
following order:
1. A guardian or conservator of the person or a fiduciary appointed or recognized
by the appropriate court of any jurisdiction in which the incapacitated person resides.
2. An individual or corporation nominated by the incapacitated person if the person
has, in the opinion of the court, sufficient mental capacity to make an intelligent
choice.
3. The person nominated in the incapacitated person's most recent durable power of
attorney.
4. The spouse of the incapacitated person.
5. An adult child of the incapacitated person.
6. A parent of the incapacitated person, including a person nominated by will or
other writing signed by a deceased parent.
7. Any relative of the incapacitated person with whom the incapacitated person has
resided for more than six months before the filing of the petition.
8. The nominee of a person who is caring for or paying benefits to the
incapacitated person.
9. If the incapacitated person is a veteran, the spouse of a veteran or the minor
child of a veteran, the department of veterans' services.
10. A fiduciary, guardian or conservator.
C. A person listed in subsection B, paragraph 4, 5, 6, 7 or 8 may nominate in
writing a person to serve in that person's place. With respect to persons who have equal
priority, the court shall select the one the court determines is best qualified to serve.
D. For good cause the court may pass over a person who has priority and appoint a
person who has a lower priority or no priority. 14-5312.01 Inpatient treatment; rights and duties of ward and guardian
A. Except as provided in subsection B of this section, a guardian of an
incapacitated person may consent to psychiatric and psychological care and treatment,
including the administration of psychotropic medications, if the care and treatment take
place outside a level one behavioral health facility licensed by the department of health
services.
B. On clear and convincing evidence that the ward is incapacitated as a result of a
mental disorder as defined in section 36-501, and is currently in need of inpatient
mental health care and treatment, the court may authorize a guardian appointed pursuant
to this title to give consent for the ward to receive inpatient mental health care and
treatment, including placement in a level one behavioral health facility licensed by the
department of health services and medical, psychiatric and psychological treatment
associated with that placement. The evidence shall be supported by the opinion of a
mental health expert who is either a physician licensed pursuant to title 32, chapter 13
or 17 and who is a specialist in psychiatry or a psychologist who is licensed pursuant to
title 32, chapter 19.1.
C. In making its decision to grant authority to a guardian pursuant to subsection B
of this section, the court shall consider the cause of the ward's disability and the
ward's foreseeable clinical needs. The court shall limit the guardian's authority to
what is reasonably necessary to obtain the care required for the ward in the least
restrictive treatment alternative. The court may limit the duration of the guardian's
authority to consent to inpatient mental health care and treatment and include other
orders the court determines necessary to protect the ward's best interests.
D. Within forty-eight hours after placement of the ward pursuant to this section,
the guardian shall give notice of this action to the ward's attorney. When the attorney
receives this notice the attorney shall assess the appropriateness of the placement
pursuant to section 36-537, subsection B and section 36-546, subsection H. If requested
by the attorney, the court shall hold a hearing on the appropriateness of the placement
within three days after receiving that request.
E. The behavioral health treatment facility shall assess the appropriateness of the
ward's placement every thirty days and shall provide a copy of the assessment report to
the ward's attorney. The ward's attorney may attend the ward's evaluation, staffing,
treatment team and case management meetings.
F. When the ward is admitted to a level one behavioral health treatment facility
pursuant to this section, the guardian shall provide the facility with the name, address
and telephone number of the ward's attorney. The facility shall include this information
in the ward's treatment record.
G. Within twenty-four hours after the facility receives any writing in which the
ward requests release from the facility, any change in placement or a change in the type
or duration of treatment, the facility shall forward this information to the ward's
attorney.
H. All health care providers, treatment facilities and regional behavioral health
authorities shall allow the ward's attorney access to all of the ward's medical,
psychiatric, psychological and other treatment records.
I. The ward's guardian shall place the ward in a least restrictive treatment
alternative within ten days after the guardian is notified by the medical director of the
inpatient facility that the ward no longer needs inpatient care. The ward, a
representative of the inpatient treatment facility, the ward's attorney, the ward's
physician or any other interested person may petition the court to order the facility to
discharge the ward to a least restrictive treatment alternative if the guardian does not
act promptly to do so.
J. If the ward is in a behavioral health treatment facility at the time of the
initial hearing on the petition for appointment of a guardian, the court investigator and
the ward's attorney shall advise the court of the appropriateness of the placement.
K. An attorney appointed pursuant to section 14-5303, subsection C remains the
attorney of record until the attorney is discharged by the court. The court shall ensure
that a ward whose guardian has been granted mental health treatment authority is
represented by an attorney at all times the guardian has that authority. Unless the
court finds that the ward has insufficient assets to meet the ward's reasonable and
necessary care and living expenses, the ward shall pay the attorney's reasonable fees.
L. If deemed necessary to adequately assess a request for mental health treatment
authority or to review the ward's placement in a behavioral health treatment facility,
the court may order an independent evaluation by either a physician who is licensed
pursuant to title 32, chapter 13 or 17 and who is a specialist in psychiatry or a
psychologist who is licensed pursuant to title 32, chapter 19.1. If the ward has
insufficient funds to pay the total cost of this evaluation, the court may deem all or
any part of the evaluator's fee to be a county expense after determining the
reasonableness of that fee.
M. Instead of ordering an independent evaluation pursuant to subsection L of this
section, the court may accept a report conducted on behalf of the behavioral health
treatment facility if the court finds that the report meets the requirements of an
independent evaluation.
N. The court may decide that the ward's right to retain or obtain a driver license
and any other civil right that may be suspended by operation of law is not affected by
the appointment of a guardian.
O. If the court grants the guardian the authority to consent to inpatient mental
health care and treatment pursuant to this section, the medical director of a level one
behavioral health facility licensed by the department of health services may admit the
ward at the guardian's request.
P. A guardian who is authorized by the court to consent to inpatient mental health
care and treatment pursuant to this section shall file with the annual report of the
guardian required pursuant to section 14-5315 an evaluation report by a physician or a
psychologist who meets the requirements of subsection B of this section. The evaluation
report shall indicate if the ward currently needs inpatient mental health care and
treatment. If the guardian does not file the evaluation report or if the report
indicates that the ward does not need inpatient mental health care and treatment, the
guardian's authority to consent to this treatment ceases. If the report indicates that
the ward currently needs this treatment, the guardian's authority to consent to this
treatment continues. If the report supports the continuation of the guardian's authority
to consent to this treatment, the ward's attorney shall review the report with the
ward. The ward may contest the continuation of the guardian's authority by filing a
request for a court hearing within ten business days after the report is filed. The
court shall hold this hearing within thirty calendar days after it receives the request.
The guardian's authority continues pending the court's ruling on the issue. At the
hearing the guardian has the burden of proving by clear and convincing evidence that the
ward is currently in need of inpatient mental health care and treatment.
Q. The court may discharge an attorney who was appointed pursuant to section
14-5303, subsection C subsequent to the appointment of a guardian if it clearly appears
from specific facts presented by affidavit or verified petition that continued
representation of the ward is no longer necessary or desirable. The factual basis must
include, at a minimum, consideration of the following:
1. The nature and history of the ward's illness.
2. The ward's history of hospitalization.
3. The ward's current and anticipated living arrangements.
4. Whether the ward's inpatient treatment is anticipated to be a one-time
hospitalization for the purpose of stabilizing the ward's condition and further
hospitalizations are not likely to be necessary.
5. Whether the ward's current and anticipated living arrangements are the least
restrictive alternatives possible.
14-5312.02 Conversion of guardianship for gravely disabled person; evaluation reports
A. A guardian for a gravely disabled person may petition for conversion of the
guardianship to one established pursuant to this title. The petition for conversion
shall be supported by the opinion of either a physician who is licensed pursuant to title
32, chapter 13 or 17 and who is a specialist in psychiatry or a psychologist who is
licensed pursuant to title 32, chapter 19.1 that the ward is incapacitated due to a
mental disorder as defined in section 36-501 and is currently in need of inpatient mental
health care and treatment.
B. The court shall appoint an attorney for the ward if the ward does not have an
attorney.
C. The court may accept the recommendations of the mental health expert and issue
orders accordingly or it may order a hearing. The court shall order a hearing if
requested by the guardian, the ward or the ward's attorney.
14-5312 General powers and duties of guardian
A. A guardian of an incapacitated person has the same powers, rights and duties
respecting the guardian's ward that a parent has respecting the parent's unemancipated
minor child, except that a guardian is not liable to third persons for acts of the ward
solely by reason of the guardianship. In particular, and without qualifying the
foregoing, a guardian has the following powers and duties, except as modified by order of
the court:
1. To the extent that it is consistent with the terms of any order by a court of
competent jurisdiction relating to detention or commitment of the ward, the guardian is
entitled to custody of the person of the ward and may establish the ward's place of abode
within or without this state.
2. If entitled to custody of the ward the guardian shall make provision for the
care, comfort and maintenance of the ward and, whenever appropriate, arrange for the
ward's training and education. Without regard to custodial rights of the ward's person,
the guardian shall take reasonable care of the ward's clothing, furniture, vehicles and
other personal effects and commence protective proceedings if other property of the ward
is in need of protection.
3. A guardian may give any consents or approvals that may be necessary to enable
the ward to receive medical or other professional care, counsel, treatment or service.
4. If no conservator for the estate of the ward has been appointed, the guardian
may:
(a) Institute proceedings to compel any person under a duty to support the ward or
to pay sums for the welfare of the ward to perform such person's duty.
(b) Receive money and tangible property deliverable to the ward and apply the money
and property for support, care and education of the ward, but the guardian may not use
funds from his ward's estate for room and board the guardian or the guardian's spouse,
parent or child has furnished the ward unless a charge for the service is approved by
order of the court made upon notice to at least one of the next of kin of the ward, if
notice is possible. He must exercise care to conserve any excess for the ward's needs.
5. A guardian is required to report the condition of the ward and of the estate
that has been subject to the guardian's possession or control, as required by the court
or court rule.
6. If a conservator has been appointed, all of the ward's estate received by the
guardian in excess of those funds expended to meet current expenses for support, care and
education of the ward shall be paid to the conservator for management as provided in this
chapter and the guardian must account to the conservator for funds expended.
7. If appropriate, a guardian shall encourage the ward to develop maximum
self-reliance and independence and shall actively work toward limiting or terminating the
guardianship and seeking alternatives to guardianship.
8. A guardian shall find the most appropriate and least restrictive setting for the
ward consistent with the ward's needs, capabilities and financial ability.
9. A guardian shall make reasonable efforts to secure appropriate medical and
psychological care and social services for the ward.
10. A guardian shall make reasonable efforts to secure appropriate training,
education and social and vocational opportunities for his ward in order to maximize the
ward's potential for independence.
11. In making decisions concerning his ward, a guardian shall take into
consideration the ward's values and wishes.
12. The guardian is authorized to act pursuant to title 36, chapter 32.
13. The guardian of an incapacitated adult who has a developmental disability as
defined in section 36-551 shall seek services that are in the best interest of the ward,
taking into consideration:
(a) The ward's age.
(b) The degree or type of developmental disability.
(c) The presence of other handicapping conditions.
(d) The guardian's ability to provide the maximum opportunity to develop the ward's
maximum potential, to provide a minimally structured residential program and environment
for the ward and to provide a safe, secure, and dependable residential and program
environment.
(e) The particular desires of the individual.
B. Any guardian of a ward for whom a conservator also has been appointed shall
control the custody and care of the ward and is entitled to receive reasonable sums for
the guardian's services and for room and board furnished to the ward as agreed upon
between the guardian and the conservator if the amounts agreed upon are reasonable under
the circumstances. The guardian may request the conservator to expend the ward's estate
by payment to third persons or institutions for the ward's care and maintenance.
14-5313 Proceedings subsequent to appointment; venue
A. The court at the place where the ward resides has concurrent jurisdiction with
the court that appointed the guardian or in which acceptance of a parental or spousal
appointment was filed, over resignation, removal, accounting and other proceedings
relating to the guardianship including proceedings to limit the authority previously
conferred on a guardian or to remove limitations previously imposed.
B. If the court located at the place where the ward resides is not the court in
which acceptance of appointment is filed, the court in which proceedings subsequent to
appointment are commenced shall in all appropriate cases notify the other court, in this
or another state, and after consultation with that court shall determine whether to
retain jurisdiction or transfer the proceedings to the other court, whichever may be in
the best interests of the ward. A copy of any order accepting a resignation, removing a
guardian or altering authority shall be sent to the court in which acceptance of
appointment is filed.
14-5314 Compensation of appointees
A. If not otherwise compensated for services rendered, an investigator, accountant,
lawyer, physician, guardian or temporary guardian appointed pursuant to this article is
entitled to reasonable compensation from the estate of the ward if the petition is
granted, or from the petitioner if the petition is denied. If the court compensates the
provider of a service the court may charge the estate for the reasonable cost of the
service and shall deposit these monies in the probate fund pursuant to section 14-5433.
B. Notwithstanding subsection A of this section, if compensation by the ward or the
petitioner is not feasible the court shall determine and pay reasonable compensation for
services rendered by an investigator, accountant, lawyer, physician, guardian or
temporary guardian appointed in a guardianship proceeding.
14-5315 Guardian reports; contents
A. A guardian shall submit a written report to the court on each anniversary date
of qualification as guardian, on resignation or removal as guardian and on termination of
the ward's disability.
B. The guardian shall mail a copy of the report to:
1. The ward.
2. The ward's conservator.
3. The ward's spouse or the ward's parents if the ward is not married.
4. A court appointed attorney for the ward.
5. Any other interested person who has filed a demand for notice with the court.
C. The report shall include the following:
1. The type, name and address of the home or facility where the ward lives and the
name of the person in charge of the home.
2. The number of times the guardian has seen the ward in the last twelve months.
3. The date the guardian last saw the ward.
4. The name and address of the ward's physician.
5. The date the ward was last seen by a physician.
6. A copy of the ward's physician's report to the guardian or, if none exists, a
summary of the physician's observations on the ward's physical and mental condition.
7. Major changes in the ward's physical or mental condition observed by the
guardian in the last year.
8. The guardian's opinion as to whether the guardianship should be continued.
9. A summary of the services provided to the ward by a governmental agency and the
name of the individual responsible for the ward's affairs with that agency.
14-5401.01 Temporary conservators; appointment; notice; hearings
A. If a person in need of protection has no conservator and an emergency exists or
if an appointed conservator is not effectively performing the duties of a conservator
and the estate or affairs of the protected person are found to require immediate action,
the person in need of protection, the protected person or any person interested in that
person's estate or affairs may petition for a finding of a need for interim protection
and for the appointment of a temporary conservator. No finding and appointment may be
made without notice, pursuant to section 14-5405, except as provided in subsection B of
this section.
B. The court may enter a finding of a need for interim protection and may appoint a
temporary conservator without notice to the proposed protected person or the proposed
protected person's attorney if all of the following conditions are met:
1. It clearly appears from specific facts shown by affidavit or by the verified
petition that immediate and irreparable injury, loss or damage will result before the
proposed protected person or that person's attorney can be heard in opposition.
2. The petitioner or the petitioner's attorney certifies to the court in writing
any efforts that the petitioner or the attorney has made to give the notice or the
reasons supporting the claim that notice should not be required.
3. The petitioner files with the court a request for a hearing on the petition for
the appointment of a temporary conservator.
4. The petitioner or the petitioner's attorney certifies that notice of the
petition, order and all filed reports and affidavits will be given to the proposed
protected person by personal service within the time period the court directs but not
more than seventy-two hours after entry of the order of appointment.
C. Unless the proposed protected person is represented by independent counsel, the
court shall appoint an attorney to represent that person in the proceeding on receipt of
the petition for temporary appointment. The attorney shall visit the proposed protected
person as soon as practicable and shall be prepared to represent that person's interests
at any hearing on the petition.
D. Every order finding a need for interim protection and appointing a temporary
conservator granted without notice expires as prescribed by the court but within a period
of not more than thirty days unless within that time the court extends it for good cause
shown for the same period or unless the attorney for the proposed protected person
consents that it may be extended for a longer period. The court shall enter the reasons
for the extension on the record.
E. The court shall schedule a hearing on the petition for a finding of the need for
interim protection and the appointment of a temporary conservator within the time
specified in subsection D of this section. If the petitioner does not proceed with the
petition the court, on the motion of any party or on its own motion, may dismiss the
petition.
F. If the court orders the appointment of a temporary conservator without notice,
the proposed protected person may appear and move for its dissolution or modification on
two days' notice to the petitioner and to the temporary conservator, or on such shorter
notice as the court prescribes. The court shall proceed to hear and determine that motion
as expeditiously as possible.
G. The hearing on a petition for the appointment of a temporary conservator shall
be held in the same manner as a hearing on a preliminary injunction. The court may order
the hearing on the petition for appointment of a permanent conservator to be advanced and
consolidated with the hearing of the petition for temporary appointment. If the court
does not order this consolidation any evidence received on a petition for temporary
appointment that would be admissible at the hearing on a petition for a permanent
appointment becomes part of the record and need not be repeated at a later hearing. This
subsection does not limit the parties to any rights they may have to trial by jury.
H. After notice and a hearing, if the court finds that a temporary conservator is
necessary and the provisions of this section have been met, the court shall make an
appointment of a temporary conservator for a specified period of time of not more than
six months unless the court extends this time period for good cause shown.
14-5401 Protective proceedings
Upon petition and after notice and a hearing in accordance with the provisions of
this article, the court may appoint a conservator or make another protective order for
cause as follows:
1. Appointment of a conservator or other protective order may be made in relation
to the estate and affairs of a minor if the court determines that a minor owns money or
property that requires management or protection which cannot otherwise be provided or has
or may have affairs which may be jeopardized or prevented by his minority or that funds
are needed for his support and education and that protection is necessary or desirable to
obtain or provide funds.
2. Appointment of a conservator or other protective order may be made in relation
to the estate and affairs of a person if the court determines both of the following:
(a) The person is unable to manage the person's estate and affairs effectively for
reasons such as mental illness, mental deficiency, mental disorder, physical illness or
disability, chronic use of drugs, chronic intoxication, confinement, detention by a
foreign power or disappearance.
(b) The person has property which will be wasted or dissipated unless proper
management is provided, or that funds are needed for the support, care and welfare of the
person or those entitled to be supported by the person and that protection is necessary
or desirable to obtain or provide funds.
14-5402 Protective proceedings; jurisdiction of affairs of protected persons
After the service of notice in a proceeding seeking the appointment of a conservator
or other protective order and until termination of the proceeding, the court in which the
petition is filed has:
1. Exclusive jurisdiction to determine the need for a conservator or other
protective order until the proceedings are terminated.
2. Exclusive jurisdiction to determine how the estate of the protected person which
is subject to the laws of this state shall be managed, expended or distributed to or for
the use of the protected person, the protected person's dependents or other claimants.
3. Concurrent jurisdiction to determine the validity of claims against the person
or estate of the protected person and questions of title concerning any estate asset.
14-5403 Venue
Venue for proceedings under this article is:
1. In the county in this state where the person to be protected resides whether or
not a guardian has been appointed in another place.
2. If the person to be protected does not reside in this state, in any county where
he has property.
14-5404 Original petition for appointment or protective order
A. The person allegedly in need of protection, any person who is interested in that
person's estate or affairs, including that person's parent, guardian or custodian, or any
person who would be adversely affected by lack of effective management of that person's
estate and affairs may petition for the appointment of a conservator or for any other
appropriate protective order.
B. The petition shall set forth, to the extent known:
1. The interest of the petitioner.
2. The name, age, residence and address of the person allegedly in need of
protection.
3. The name, address and priority for appointment of the person whose appointment
is sought.
4. The name and address of the guardian, if any, of the person allegedly in need of
protection.
5. The name and address of the nearest relative of the person allegedly in need of
protection known to the petitioner.
6. A general statement of the estate of the person allegedly in need of protection
with an estimate of its value, including any compensation, insurance, pension or
allowance to which the person is entitled.
7. The reason why appointment of a conservator or any other protective order is
necessary.
14-5405 Notice in conservatorship proceedings
A. In a proceeding for the appointment or removal of a conservator of a protected
person or person allegedly in need of protection, other than the appointment of a
temporary conservator or temporary suspension of a conservator, notice of the hearing
shall be given to each of the following:
1. The protected person or the person allegedly in need of protection if that
person is fourteen years of age or older.
2. The spouse, parents and adult children of the protected person or person
allegedly in need of protection, or if no spouse, parents or adult children can be
located, at least one adult relative of the protected person or the person allegedly in
need of protection, if such a relative can be found.
3. Any person who is serving as guardian or conservator or who has the care and
custody of the protected person or person allegedly in need of protection.
4. Any person who has filed a demand for notice.
B. At least fourteen days before the hearing notice shall be served personally on
the protected person or the person allegedly in need of protection and that person's
spouse and parents if they can be found within the state. Notice to the spouse and
parents, if they cannot be found within the state, and to all other persons except the
protected person or the person allegedly in need of protection shall be given in
accordance with section 14-1401. Waiver of notice by the protected person or the person
allegedly in need of protection is not effective unless the protected person or the
person allegedly in need of protection attends the hearing.
14-5406 Protective proceedings; request for notice; interested person
On payment of any required fee, any interested person who desires to be notified
before any order is made in a guardianship or conservatorship proceeding, including any
proceeding subsequent to the appointment of a guardian pursuant to section 14-5313, or
subsequent to the appointment of a conservator pursuant to section 14-5416, may file a
demand for notice with the clerk of the court in which the proceeding is pending. The
person demanding notice shall mail a copy of the demand to the guardian and the
conservator if one has been appointed. A demand is not effective unless it contains a
statement showing the interest of the person making it and the person's address, or that
of the person's attorney, and is effective only as to matters occurring after the
filing. Any governmental agency paying or planning to pay benefits to the person to be
protected is an interested person in protective proceedings.
14-5407 Procedure concerning hearing and order on original petition
A. On the filing of a petition for appointment of a conservator or any other
protective order because of minority, the court shall set a hearing date on the matters
alleged in the petition. If, at any time in the proceeding, the court determines that
the interests of the minor are or may be inadequately represented, it shall appoint an
attorney to represent the minor. If the minor is at least fourteen years of age the
court shall consider the choice of the minor.
B. On the filing of a petition for appointment of a conservator or any other
protective order for reasons other than minority, the court shall set a hearing date.
Unless the person to be protected has counsel of his own choice, the court shall appoint
an attorney to represent him. If the alleged disability is mental illness, mental
deficiency, mental disorder, physical illness or disability, chronic use of drugs, or
chronic intoxication, the court shall appoint an investigator to interview the person to
be protected. On petition by an interested person or on the court's own motion, the
court may direct that an appropriate medical or psychological evaluation of the person be
conducted. The investigator and the person conducting the medical or psychological
evaluation shall submit written reports to the court before the hearing date.
C. In any case where the veterans administration is or may be an interested party,
a certificate of an authorized official of the veterans administration that the person
allegedly in need of protection has been found incapable of handling the benefits
payable, on examination in accordance with the laws and regulations governing the
veterans administration, is prima facie evidence of the necessity for appointment of a
conservator.
D. The person allegedly in need of protection is entitled to be present at the
hearing, to be represented by counsel, to present evidence and to cross-examine
witnesses, including any court appointed examiner and investigator. The issue may be
determined at a closed hearing if the person allegedly in need of protection or that
person's counsel so requests.
E. After the hearing, upon a finding that a basis for the appointment of a
conservator or any other protective order has been established, the court shall make an
appointment or other appropriate protective order.
14-5408 Permissible court orders
A. The court has the following powers which may be exercised directly or through a
conservator in respect to the estate and affairs of protected persons:
1. While a petition for appointment of a conservator or any other protective order
is pending and after a preliminary hearing and without notice to others, the court has
power to preserve and apply the estate of the person allegedly in need of protection as
may be required for that person's benefit or the benefit of that person's dependents.
2. After a hearing and upon determining that a basis for an appointment or any
other protective order exists with respect to a minor without other disability, the court
has all those powers over the estate and affairs of the minor which are or might be
necessary for the best interests of the minor, the minor's family and members of the
minor's household.
3. After a hearing and upon determining that a basis for an appointment or any
other protective order exists with respect to a person for reasons other than minority,
the court has, for the benefit of the protected person and members of that person's
household, all the powers over his estate and affairs which the protected person could
exercise if present and not under disability, except the power to make a will or to make
gifts other than those authorized by this section.
4. After notice and a hearing the court may authorize the conservator to make gifts
on behalf of the protected person out of the estate of the protected person to donees and
in amounts that are consistent with the protected person's best interests and
intentions. In determining if these gifts are in the protected person's best interests
the court shall consider:
(a) The protected person's estate plan, if any.
(b) The protected person's pattern of prior gifts, if any.
(c) The potential tax savings that would result if a gift were authorized.
(d) The size of the estate.
(e) The protected person's income and expenses.
(f) The physical and mental condition and life expectancy of the protected person.
(g) The likelihood that the protected person's disability may cease.
(h) The likelihood that the protected person would make the gift if the person were
able to consent.
(i) The ability of the protected person to consent to the proposed gifts.
B. An order made pursuant to this section determining that a basis for appointment
of a conservator or other protective order exists has no effect on the capacity of the
protected person.
C. To encourage the self-reliance and independence of a protected person, the court
may grant the protected person the ability to handle part of the protected person's money
or other property without the consent or supervision of the conservator. This may
include allowing the protected person to maintain appropriate accounts in any bank or
other financial institution.
14-5409 Protective arrangements and single transactions authorized
A. If it is established in a proper proceeding that a basis exists as described in
section 14-5401 for affecting the estate and affairs of a person the court, without
appointing a conservator, may authorize, direct or ratify any transaction necessary or
desirable to achieve any security, service or care arrangement meeting the foreseeable
needs of the protected person. Protective arrangements include, but are not limited to,
payment, delivery, deposit or retention of funds or property, sale, mortgage, lease or
other transfer of property, entry into an annuity contract, a contract for life care, a
deposit contract, a contract for training and education, or addition to or establishment
of a suitable trust.
B. When it has been established in a proper proceeding that a basis exists as
described in section 14-5401 for affecting the estate and affairs of a person the court,
without appointing a conservator, may authorize, direct or ratify any contract, trust or
other transaction relating to the protected person's financial affairs or involving the
protected person's estate if the court determines that the transaction is in the best
interests of the protected person.
C. Before approving a protective arrangement or other transaction under this
section, the court shall consider the interests of creditors and dependents of the
protected person and, in view of the protected person's disability, whether the protected
person needs the continuing protection of a conservator. The court may appoint a special
conservator to assist in the accomplishment of any protective arrangement or other
transaction authorized under this section who shall have the authority conferred by the
order and serve until discharged by order after report to the court of all matters done
pursuant to the order of appointment.
14-5410 Who may be appointed conservator; priorities
A. The court may appoint an individual or a corporation, with general power to
serve as trustee, as conservator of the estate of a protected person subject to the
requirements of section 14-5106. The following are entitled to consideration for
appointment in the order listed:
1. A conservator, guardian of property or other like fiduciary appointed or
recognized by the appropriate court of any other jurisdiction in which the protected
person resides.
2. An individual or corporation nominated by the protected person if the protected
person is at least fourteen years of age and has, in the opinion of the court, sufficient
mental capacity to make an intelligent choice.
3. The person nominated in the protected person's most recent durable power of
attorney.
4. The spouse of the protected person.
5. An adult child of the protected person.
6. A parent of the protected person, or a person nominated by the will of a
deceased parent.
7. Any relative of the protected person with whom the protected person has resided
for more than six months before the filing of the petition.
8. The nominee of a person who is caring for or paying benefits to the protected
person.
9. If the protected person is a veteran, the spouse of a veteran or the minor child
of a veteran, the department of veterans' services.
10. A fiduciary, guardian or conservator.
B. A person listed in subsection A, paragraph 4, 5, 6, 7 or 8 of this section may
nominate in writing a person to serve in that person's place. With respect to persons
having equal priority, the court shall select the one it determines is best qualified to
serve. The court, for good cause, may pass over a person having priority and appoint a
person having a lower priority or no priority. 14-5411 Bond; exception
A. Except as otherwise provided in subsection B, the court shall require a
conservator to furnish a bond conditioned upon faithful discharge of all duties according
to law, with sureties as it shall specify. Unless otherwise directed, the bond shall be
in the amount of the aggregate capital value of the property of the estate in the
conservator's control plus one year's estimated income minus the value of securities
deposited under arrangements requiring an order of the court for their removal and the
value of any land which the fiduciary, by express limitation of power, lacks power to
sell or convey without court authorization. For good cause shown the court may reduce or
eliminate the bond to the extent of regular fixed expenses paid for the benefit of the
protected person. The court in lieu of sureties on a bond may accept other security for
the performance of the bond, including a pledge of securities or a mortgage of land.
B. A bond is not required of a conservator which is a national banking association,
a holder of a banking permit under the laws of this state, a savings and loan association
authorized to conduct trust business in this state, a title insurance company qualified
to do business under the laws of this state, a trust company holding a certificate to
engage in trust business from the superintendent of financial institutions or the public
fiduciary.
14-5412 Terms and requirements of bonds
A. The following requirements and provisions apply to any bond required under
section 14-5411:
1. Unless otherwise provided by the terms of the approved bond, sureties are
jointly and severally liable with the conservator and with each other.
2. By executing an approved bond of a conservator, the surety consents to the
jurisdiction of the court which issued letters to the primary obligor in any proceeding
pertaining to the fiduciary duties of the conservator and naming the surety as a party
respondent. Notice of any proceeding shall be delivered to the surety or mailed by
certified mail to the address listed with the court at the place where the bond is filed
and to the address as then known to the petitioner.
3. On petition of a successor conservator or any interested person, a proceeding
may be initiated against a surety for breach of the obligation of the bond of the
conservator.
4. The bond of the conservator is not void after the first recovery but may be
proceeded against from time to time until the whole penalty is exhausted.
B. No proceeding may be commenced against the surety on any matter as to which an
action or proceeding against the primary obligor is barred by adjudication or limitation.
14-5413 Acceptance of appointment; consent to jurisdiction
By accepting appointment, a conservator submits personally to the jurisdiction of
the court in any proceeding relating to the estate that may be instituted by any
interested person. Notice of any proceeding shall be delivered to the conservator, or
mailed to him by registered or certified mail at his address as listed in the petition
for appointment or as thereafter reported to the court and to his address as then known
to the petitioner.
14-5414.01 State veterans' conservatorship fund
A. The state veterans' conservatorship fund is established.
B. All conservatorship monies collected pursuant to section 14-5414, subsection B
shall be deposited, pursuant to sections 35-146 and 35-147, by the department of
veterans' services in the state veterans' conservatorship fund. On notice from the
department of veterans' services, the state treasurer shall invest and divest monies in
the fund as provided by section 35-313, and monies earned from investment shall be
credited to the fund. 14-5414 Compensation and expenses
A. If not otherwise compensated for services rendered, any investigator,
accountant, lawyer, physician, conservator or special conservator appointed in a
protective proceeding is entitled to reasonable compensation from the estate. If the
court pays for any of these services it may charge the estate for reasonable
compensation. The clerk shall deposit monies it collects in the probate fund pursuant to
section 14-5433.
B. Compensation payable to the department of veterans' services, when acting as a
conservator of the estate of a veteran or a veteran's surviving spouse or minor child or
the incapacitated spouse of a protected veteran, shall not be more than five per cent of
the amount of monies received during the period covered by the conservatorship. A copy
of the petition and notice of hearing shall be given to the proper officer of the
veterans administration in the manner provided in the case of any hearing on a guardian's
account or any other pleading. No commission or compensation shall be allowed on the
monies or other assets received from a prior conservator nor upon the amount received
from liquidation of loans or other investments.
14-5415 Death, resignation or removal of conservator
The court may remove a conservator for good cause, upon notice and hearing, or
accept the resignation of a conservator. After his death, resignation or removal the
court may appoint another conservator. A conservator so appointed succeeds to the title
and powers of his predecessor.
14-5416 Petitions for orders subsequent to appointment
A. Any person interested in the estate or affairs of a person for whom a
conservator has been appointed may file a petition in the appointing court for an order:
1. Requiring bond or security or additional bond or security, or reducing bond.
2. Requiring an accounting for the administration of the estate of the protected
person.
3. Directing distribution.
4. Removing the conservator and appointing a temporary or successor conservator.
5. Granting other appropriate relief.
B. A conservator may petition the appointing court for instructions concerning the
fiduciary's responsibility.
C. Upon notice and a hearing the court may give appropriate instructions or make
any appropriate order.
D. When a surety of a conservator desires to be released from responsibility for
future acts, the surety may apply to the court for a release. The court shall proceed in
the same manner as in a proceeding under section 14-3604, subsection B. Notice shall be
given to the conservator as provided in section 14-5413.
14-5417 General duty of conservator
In the exercise of his powers, a conservator is to act as a fiduciary and shall
observe the standard of care applicable to trustees as described by section 14-7302. 14-5418 Inventory and records
A. Within ninety days after appointment, a conservator shall prepare and file with
the court an inventory of the estate owned by the protected person on the date of the
conservator's appointment, listing it with reasonable detail and indicating the fair
market value as of the date of appointment of each item listed.
B. The conservator shall provide a copy of the inventory to the protected person if
the protected person can be located, has attained the age of fourteen years, and has
sufficient mental capacity to understand these matters, and to any parent or guardian
with whom the protected person resides. The conservator shall keep suitable records of
the conservator's administration and exhibit the records on request of any interested
person.
14-5419 Accounts
A. Every conservator must account to the court for the administration of the estate
not less than annually on the anniversary date of qualifying as conservator and also on
resignation or removal, and on termination of the protected person's minority or
disability, except that for good cause shown upon the application of an interested
person, the court may relieve the conservator of filing annual or other accounts by an
order entered in the minutes.
B. The court may take such action as is appropriate upon filing of annual or other
accounts. In connection with any account, the court may require a conservator to submit
to a physical check of the estate in the conservator's control, to be made in any manner
the court may specify.
C. An adjudication allowing an intermediate or final account can be made only upon
petition, notice and a hearing. Notice must be given to:
1. The protected person.
2. A guardian of the protected person if one has been appointed, unless the same
person is serving as both guardian and conservator.
3. If no guardian has been appointed or the same person is serving as both guardian
and conservator, a spouse or, if the spouse is the conservator, there be no spouse or the
spouse is incapacitated, a parent or an adult child who is not serving as a conservator.
4. A guardian ad litem appointed for the protected person, if the court determines
in accordance with section 14-1403 that representation of the interest of the protected
person would otherwise be inadequate.
D. An order, made upon notice and a hearing, allowing an intermediate account of a
conservator, adjudicates as to the conservator's liabilities concerning the matters
considered in connection therewith. An order, made upon notice and a hearing, allowing a
final account adjudicates as to all previously unsettled liabilities of the conservator
to the protected person or the protected person's successors relating to the
conservatorship.
E. In any case in which the estate consists, in whole or in part, of benefits paid
by the veterans administration to the conservator or the conservator's predecessor for
the benefit of the protected person, the veterans administration office which has
jurisdiction over the area is entitled to a copy of any account filed under chapter 5,
article 4 of this title. Each year in which an account is not filed with the court, the
conservator shall, if requested, submit an account to the appropriate veterans
administration office. If such an account is not submitted as requested, or if it is
found unsatisfactory by the veterans administration, the court shall, upon receipt of
notice thereof, require the conservator forthwith to file an account with the court. 14-5420 Conservators; title by appointment
A. The appointment of a conservator vests in the conservator title as trustee to
all property or to the part specified in the order of the protected person, presently
held or thereafter acquired, including title to any property previously held for the
protected person by custodians or attorneys in fact. An order specifying that only part
of the property of the protected person vests in the conservator creates a limited
conservatorship.
B. The appointment of a conservator is not a transfer or alienation within the
meaning of general provisions of any federal or state statute or rule, regulation,
insurance policy, pension plan, contract, will or trust instrument, imposing restrictions
upon or penalties for transfer or alienation by the protected person of the person's
rights or interest.
C. Except as otherwise provided by law, the interest of the protected person in
property vested in a conservator is not transferable or assignable by the protected
person.
D. Property vested in a conservator by this section and the interest of the
protected person in that property are not subject to levy, garnishment or similar process
other than by an order issued in the protective proceeding as provided in section
14-5428.
14-5421 Recording of conservator's letters
Letters of conservatorship are evidence of transfer of all assets, or in the case of
a limited conservatorship, the part specified in the letters, of a protected person to
the conservator. An order terminating a conservatorship is evidence of transfer of all
assets subject to the conservatorship from the conservator to the protected person, or
the person's successors. Subject to the requirements of general statutes governing the
filing or recordation of documents of title to land or other property, letters of
conservatorship and orders terminating conservatorships shall be filed or recorded in the
county where the property of the protected person is located to give record notice of
title as between the conservator and the protected person.
14-5422 Sale, encumbrance or transaction involving conflict of interest; voidable; exceptions
Any sale or encumbrance to a conservator, his spouse, agent or attorney, or any
corporation or trust in which he has a substantial beneficial interest, or any
transaction which is affected by a substantial conflict of interest is voidable unless
the transaction is approved by the court after notice to interested persons and others as
directed by the court.
14-5423 Persons dealing with conservators; protection
A. A person who in good faith either assists or deals with a conservator, on the
basis of a copy of letters certified by or under the direction of the court or an officer
thereof within sixty days of the transaction, is protected as if the conservator properly
exercised the conservator's power and even though the authority of that person as
conservator has been terminated. The fact that a person knowingly deals with a
conservator does not alone require the person to inquire into the existence of a power,
the propriety of its exercise, or the current authority of the conservator, except that
restrictions on powers of conservators which are endorsed on letters as provided in
section 14-5426 are effective as to third persons. A person is not bound to see to the
proper application of estate assets paid or delivered to a conservator.
B. The protection expressed in this section extends to any procedural irregularity
or jurisdictional defect that occurred in proceedings leading to the issuance of
letters. The protection expressed in this section is not a substitution for that
provided by comparable provisions of the laws relating to commercial transactions and
laws simplifying transfers of securities by fiduciaries.
14-5424 Powers of conservator in administration
A. Subject to the limitations provided in section 14-5425, a conservator has all
the powers conferred herein and any additional powers conferred by law on trustees in
this state. In addition, a conservator of the estate of an unmarried minor, as to whom
no one has parental rights, has the duties and powers of a guardian of a minor described
in section 14-5209 until the minor attains the age of majority or marries, but the
parental rights so conferred on a conservator do not preclude appointment of a guardian
as provided by article 2 of this chapter.
B. A conservator, without court authorization or confirmation, may invest and
reinvest funds of the estate as would a trustee.
C. A conservator, acting reasonably in efforts to accomplish the purpose of the
appointment, may act without court authorization or confirmation to:
1. Collect, hold and retain assets of the estate including land in another state,
until, in the conservator's judgment, disposition of the assets should be made. Assets
may be retained even though they include an asset in which the conservator is personally
interested.
2. Receive additions to the estate.
3. Continue or participate in the operation of any business or other enterprise.
4. Acquire an undivided interest in an estate asset in which the conservator, in
any fiduciary capacity, holds an undivided interest.
5. Invest and reinvest estate assets in accordance with subsection B of this
section.
6. Deposit estate funds in a state or federally insured financial institution
including one operated by the conservator.
7. Acquire or dispose of an estate asset including land in another state for cash
or on credit, at public or private sale, and manage, develop, improve, exchange,
partition, change the character of or abandon an estate asset.
8. Make ordinary or extraordinary repairs or alterations in buildings or other
structures, demolish any improvements and raze existing or erect new party walls or
buildings.
9. Subdivide, develop, or dedicate land to public use, make or obtain the vacation
of plats and adjust boundaries, adjust differences in valuation on exchange, partition by
giving or receiving considerations and dedicate easements to public use without
consideration.
10. Enter for any purpose into a lease as lessor or lessee with or without an option
to purchase or renew for a term within or extending beyond the term of the
conservatorship.
11. Enter into a lease or arrangement for exploration and removal of minerals or
other natural resources or enter into a pooling or unitization agreement.
12. Grant an option involving disposition of an estate asset, or take an option for
the acquisition of any asset.
13. Vote a security, in person or by general or limited proxy.
14. Pay calls, assessments and any other sums chargeable or accruing against or on
account of securities.
15. Sell or exercise stock subscription or conversion rights and consent, directly
or through a committee or other agent, to the reorganization, consolidation, merger,
dissolution or liquidation of a corporation or other business enterprise.
16. Hold a security in the name of a nominee or in other form without disclosure of
the conservatorship so that title to the security may pass by delivery, but the
conservator is liable for any act of the nominee in connection with the stock so held.
17. Insure the assets of the estate against damage or loss, and the conservator
against liability with respect to third persons.
18. Borrow money to be repaid from estate assets or otherwise, advance money for the
protection of the estate or the protected person, and for all expenses, losses, and
liability sustained in the administration of the estate or because of the holding or
ownership of any estate assets, and the conservator has a lien on the estate as against
the protected person for advances so made.
19. Pay or contest any claim, settle a claim by or against the estate or the
protected person by compromise, arbitration, or otherwise and release, in whole or in
part, any claim belonging to the estate to the extent that the claim is uncollectible
except that personal injury or wrongful death claims shall be compromised pursuant to
subsection D of this section.
20. Pay taxes, assessments, compensation of the conservator and other expenses
incurred in the collection, care, administration and protection of the estate.
21. Allocate items of income or expense to either estate income or principal, as
provided by law, including creation of reserves out of income for depreciation,
obsolescence or amortization, or for depletion in mineral or timber properties.
22. Pay any sum distributable to a protected person or dependent of the protected
person, without liability to the conservator, by paying the sum to the distributee or by
paying the sum for the use of the distributee either to the guardian of the distributee
or, if none, to a relative or other person having custody of the person.
23. Employ persons, including attorneys, auditors, investment advisors or agents,
even though they are associated with the conservator, to advise or assist the conservator
in the performance of administrative duties, act upon their recommendation without
independent investigation and, instead of acting personally, employ one or more agents to
perform any act of administration, whether or not discretionary.
24. Prosecute or defend actions, claims or proceedings in any jurisdiction for the
protection of estate assets and of the conservator in the performance of fiduciary
duties.
25. Execute and deliver all instruments which will accomplish or facilitate the
exercise of the powers vested in the conservator.
D. A conservator may act with court approval to compromise a personal injury or
wrongful death claim for a protected person. The conservator may act with court approval
to release an alleged tortfeasor if the release is in the best interest of the protected
person. If the conservator obtains an order of approval for compromise from a court of
competent jurisdiction, the compromise may be in exchange for a lump sum amount or an
arrangement that defers the receipt of part or all of the consideration for the
compromise until after the protected person reaches majority and may involve a structured
settlement or the creation of a trust on the terms that the court approves for any
protected person.
14-5425 Distributive duties and powers of conservator
A. A conservator may expend or distribute income or principal of the estate without
court authorization or confirmation for the support, education, care or benefit of the
protected person and the person's dependents in accordance with the following principles:
1. The conservator shall consider recommendations relating to the appropriate
standard of support, education and benefit for the protected person made by a parent or
guardian, if any. The conservator may not be surcharged for sums paid to persons or
organizations actually furnishing support, education or care to the protected person
pursuant to the recommendations of a parent or guardian of the protected person unless
the conservator knows that the parent or guardian is deriving personal financial benefit
therefrom, including relief from any personal duty of support, or unless the
recommendations are clearly not in the best interests of the protected person.
2. The conservator shall expend or distribute sums reasonably necessary for the
support, education, care or benefit of the protected person and the person's dependents
with due regard to:
(a) The size of the estate, the probable duration of the conservatorship and the
likelihood that the protected person, at some future time, may be fully able to be wholly
self-sufficient and able to manage business affairs and the estate.
(b) The accustomed standard of living of the protected person and the person's
dependents.
(c) Other funds or sources used for the support of the protected person.
3. With respect to the affairs and estate of a minor, the conservator shall also
consider the following factors in making estate distributions:
(a) The financial responsibility and financial resources of the parents of the
child.
(b) Extraordinary custodial responsibilities undertaken by the parent or parents as
the result of the child's physical or mental condition and the effect of these
extraordinary responsibilities on appropriate gainful employment of the parent.
(c) The physical and mental condition of the child and the child's medical and
educational needs. Any incidental benefit to other members of the child's household
derived from a distribution is not a disqualifying factor.
(d) If the child is permanently and totally disabled, the standard of living the
child should reasonably expect to enjoy given the financial resources available to the
child.
4. The conservator may expend funds of the estate for the support of persons
legally dependent on the protected person and others who are members of the protected
person's household, who are unable to support themselves, and who are in need of
support. If benefits are being paid by the veterans administration to the conservator,
such income may be expended only for the support of the protected person and the person's
spouse and minor children, except upon petition to and prior order of the court after a
hearing.
5. Funds expended under this subsection may be paid by the conservator to any
person, including the protected person, to reimburse for expenditures which the
conservator might have made, or in advance for services to be rendered to the protected
person when it is reasonable to expect that they will be performed and where advance
payments are customary or reasonably necessary under the circumstances.
6. A conservator, in discharging the responsibilities conferred by a court order
and this section, shall implement the principles described in section 14-5408 to the
extent possible.
B. When a minor who has not been adjudged disabled under section 14-5401, paragraph
2 attains majority, the conservator, after meeting all prior claims and expenses of
administration, shall pay over and distribute all funds and properties to the former
protected person as soon as possible.
C. When the conservator is satisfied that a protected person's disability, other
than minority, has ceased, the conservator, after meeting all prior claims and expenses
of administration, shall pay over and distribute all funds and properties to the former
protected person as soon as possible.
D. If a protected person dies, the conservator may deliver to the court for
safekeeping any will of the deceased protected person which may have come into the
conservator's possession or deliver the will to the personal representative named in the
will. If the will is delivered to the personal representative named in the will, a copy
of the will shall be filed with the court in the conservatorship proceeding. If the will
is filed with the court the conservator shall inform the personal representative or a
beneficiary named therein that the conservator has done so, and retain the estate for
delivery to a duly appointed personal representative of the decedent or other persons
entitled thereto. If after forty days from the death of the protected person no other
person has been appointed personal representative and no application or petition
for appointment is before the court, the conservator may apply to exercise the powers
and duties of a personal representative so that the conservator may proceed to administer
and distribute the decedent's estate without additional or further appointment. The
conservator may include in such an application a request to probate the will of the
deceased protected person. On receipt of an application, the registrar, after making the
findings required pursuant to section 14-3303, shall issue a written statement of
informal probate and shall endorse the letters of the conservator. The registrar may
also enter the will of the deceased protected person to probate. The statement of the
registrar under this section shall have the effect of an order of appointment of a
personal representative as provided in section 14-3308 and chapter 3, articles 6 through
10 of this title, except that the estate in the name of the conservator, after
administration, may be distributed to the decedent's successors without prior re-transfer
to the conservator as personal representative.
E. If a protected person dies, and on reasonable inquiry the conservator is unable
to locate any person specified in section 36-831, subsection A, paragraph 1, 2 or 3
willing to assume the duty of burying the body of the decedent or making other funeral
and disposition arrangements, the conservator may make reasonable burial or other funeral
arrangements, the cost of which is a charge against the estate.
F. The estate of a deceased protected person is liable for any unpaid expenses of
the conservator's administration, and such expenses are a lien on property transferred by
the conservator to the decedent's personal representative.
14-5426 Enlargement or limitation of powers of conservator
A. Subject to the restrictions in section 14-5408, subsection A, paragraph 4, the
court may confer on a conservator at the time of appointment or later, in addition to the
powers conferred on him by sections 14-5424 and 14-5425, any power which the court itself
could exercise under section 14-5408, subsection A, paragraphs 2 and 3. The court may,
at the time of appointment or later, limit the powers of a conservator otherwise
conferred by sections 14-5424 and 14-5425, or previously conferred by the court, and may
at any time relieve him of any limitation. If the court limits any power conferred on
the conservator by section 14-5424 or 14-5425, the limitation shall be endorsed upon his
letters of appointment.
B. Upon appointment of a conservator for a protected spouse, the court may
determine whether the spouse's share of community property shall be managed by the
conservator or by the other spouse. If the court determines that the community property
shall be managed by the other spouse, and if the protected spouse is the husband, the
wife may become the manager of the community property during the conservatorship and may
dispose of community personal property in the interests of the community.
14-5427 Preservation of estate plan
In investing the estate, and in selecting assets of the estate for distribution
under section 14-5425, subsection A, in utilizing powers of revocation or withdrawal
available for the support of the protected person, and exercisable by the conservator or
the court, the conservator and the court shall take into account any known estate plan of
the protected person known to them, including the will, any revocable trust of which the
person is settlor, and any contract, transfer or joint ownership arrangement originated
by the protected person with provisions for payment or transfer of benefits or interests
at the person's death to another or other persons. The conservator may examine the will
of the protected person.
14-5428 Claims against protected person; enforcement
A. A conservator must pay from the estate all just claims against the estate and
against the protected person arising before or after the conservatorship upon their
presentation and allowance. A claim may be presented by either of the following methods:
1. The claimant may deliver or mail to the conservator a written statement of the
claim indicating its basis, the name and address of the claimant and the amount claimed.
2. The claimant may file a written statement of the claim, in the form prescribed
by rule, with the clerk of the court and deliver or mail a copy of the statement to the
conservator. A claim is deemed presented on the first to occur of receipt of the written
statement of claim by the conservator, or the filing of the claim with the court. A
presented claim is allowed if it is not disallowed by written statement mailed by the
conservator to the claimant within ninety days after its presentation. The presentation
of a claim tolls any statute of limitation relating to the claim until thirty days after
its disallowance.
B. A claimant whose claim has not been paid may petition the court for
determination of his claim at any time before it is barred by the applicable statute of
limitation and, upon due proof, procure an order for its allowance and payment from the
estate. If a proceeding is pending against a protected person at the time of appointment
of a conservator or is initiated against the protected person thereafter, the moving
party must give notice of the proceeding to the conservator if the outcome is to
constitute a claim against the estate.
C. If it appears that the estate in conservatorship is likely to be exhausted
before all existing claims are paid, preference is to be given to prior claims for the
care, maintenance and education of the protected person or his dependents and existing
claims for expenses of administration.
14-5429 Personal liability of conservator
A. Unless otherwise provided in the contract, a conservator is not personally
liable on a contract properly entered into in the conservator's fiduciary capacity in the
course of administration of the estate unless the conservator fails to reveal the
representative capacity and identify the estate in the contract.
B. The conservator is individually liable for obligations arising from ownership or
control of property of the estate or for torts committed in the course of administration
of the estate only if the conservator is personally at fault.
C. Claims based on contracts entered into by a conservator in a fiduciary capacity,
on obligations arising from ownership or control of the estate, or on torts committed in
the course of administration of the estate may be asserted against the estate by
proceeding against the conservator in the conservator's fiduciary capacity, whether or
not the conservator is individually liable therefor.
D. Any question of liability between the estate and the conservator individually
may be determined in a proceeding for accounting, surcharge or indemnification, or other
appropriate proceeding or action.
14-5430 Termination of proceeding
The protected person, the conservator or any other interested person may petition
the court to terminate the conservatorship. A protected person seeking termination is
entitled to the same rights and procedures as in an original proceeding for a protective
order. The court, upon determining after notice and a hearing that the minority or
disability of the protected person has ceased, shall terminate the conservatorship. Upon
termination, title to assets of the estate passes to the formerly protected person or to
the person's successors. The order of termination shall provide for expenses of
administration and shall direct the conservator to execute appropriate instruments to
evidence the transfer.
14-5431 Payment of debt and delivery of property to foreign conservator without local proceedings
Any person indebted to a protected person, or having possession of property or of an
instrument evidencing a debt, stock or chose in action belonging to a protected person
may pay or deliver to a conservator, guardian of the estate or other like fiduciary
appointed by a court of the state of residence of the protected person, upon being
presented with proof of his appointment and an affidavit made by him or on his behalf
stating both:
1. That no protective proceeding relating to the protected person is pending in
this state.
2. That the foreign conservator is entitled to payment or to receive delivery. If
the person to whom the affidavit is presented is not aware of any protective proceeding
pending in this state, payment or delivery in response to the demand and affidavit
discharges the debtor or possessor.
14-5432 Domiciliary foreign conservator; powers of local conservator
If no local conservator has been appointed and no petition in a protective
proceeding is pending in this state, a domiciliary foreign conservator may file with a
court in this state in a county in which property belonging to the protected person is
located certified copies of his appointment and of any official bond he has
given. Thereafter, he may exercise as to assets in this state all powers of a local
conservator and may maintain actions and proceedings in this state subject to any
conditions imposed upon non-resident parties generally.
14-5433 Probate fund; use
A. The presiding judge of the superior court in each county may establish a probate
fund consisting of monies received pursuant to sections 14-3722, 14-5314 and 14-5414.
B. Each month the clerk of the court shall transmit all monies collected pursuant
to sections 14-3722, 14-5314 and 14-5414 to the county treasurer for deposit in the
probate fund.
C. The presiding judge of the superior court shall administer or spend monies in
the fund to preserve, audit and safeguard the estates and wards for whom the court has a
fiduciary responsibility.
D. On notice from the superior court the county treasurer shall invest and divest
monies in the probate fund, and monies earned from investment shall be credited to the
fund.
E. Fund monies supplement and do not supplant local funding that otherwise is made
available for probate services.
14-5501 Durable power of attorney; creation; validity
A. A durable power of attorney is a written instrument by which a principal
designates another person as the principal's agent. The instrument shall contain words
that demonstrate the principal's intent that the authority conferred in the durable power
of attorney may be exercised:
1. If the principal is subsequently disabled or incapacitated.
2. Regardless of how much time has elapsed, unless the instrument states a definite
termination time.
B. The written instrument may demonstrate the principal's intent required by
subsection A of this section using either of the following statements or similar
language:
1. "This power of attorney is not affected by subsequent disability or incapacity
of the principal or lapse of time."
2. "This power of attorney is effective on the disability or incapacity of the
principal."
C. A power of attorney executed in another jurisdiction of the United States is
valid in this state if the power of attorney was validly executed in the jurisdiction in
which it was created.
D. From and after August 1, 1998, except as provided in section 28-370, an adult,
known as the principal, may designate another adult, known as the agent, to make
financial decisions on the principal's behalf by executing a written power of attorney
that satisfies all of the following requirements:
1. Contains language that clearly indicates that the principal intends to create a
power of attorney and clearly identifies the agent.
2. Is signed or marked by the principal or signed in the principal's name by some
other individual in the principal's conscious presence and at the principal's direction.
3. Is witnessed by a person other than the agent, the agent's spouse, the agent's
children or the notary public.
4. Is executed and attested by its acknowledgment by the principal and by an
affidavit of the witness before notary public and evidenced by the notary public's
certificate, under official seal, in substantially the following form:
I, __________, the principal, sign my name to this power of attorney
this _____ day of __________ and, being first duly sworn, do declare to the
undersigned authority that I sign and execute this instrument as my power of
attorney and that I sign it willingly, or willingly direct another to sign for
me, that I execute it as my free and voluntary act for the purposes expressed
in the power of attorney and that I am eighteen years of age or older, of
sound mind and under no constraint or undue influence.
______________________
Principal
I, __________, the witness, sign my name to the foregoing power of
attorney being first duly sworn and do declare to the undersigned authority
that the principal signs and executes this instrument as his/her power of
attorney and that he/she signs it willingly, or willingly directs another to
sign for him/her, and that I, in the presence and hearing of the principal,
sign this power of attorney as witness to the principal's signing and that to
the best of my knowledge the principal is eighteen years of age or older, of
sound mind and under no constraint or undue influence.
____________________
Witness
The state of _________
County of ____________
Subscribed, sworn to and acknowledged before me by __________, the
principal, and subscribed and sworn to before me by __________, witness, this
_____ day of ____________.
(seal)
(signed) _____________________
______________________________
(notary public)
E. The execution requirements for the creation of a power of attorney provided in
subsection D of this section do not apply if the principal creating the power of attorney
is:
1. A person other than a natural person.
2. Any person, if the power of attorney to be created is a power coupled with an
interest. For the purposes of this paragraph, "power coupled with an interest" means a
power that forms a part of a contract and is security for money or for the performance of
a valuable act.
14-5502 Effect of lapse of time, disability or incapacity
All acts done by an agent pursuant to a durable power of attorney during any period
of disability or incapacity of the principal has the same effect and inures to the
benefit of and binds the principal and the principal's successors in interest as if the
principal were not incapacitated or disabled.
14-5503 Relation of agent to court appointed fiduciary
A. If, following execution of a durable power of attorney, a court of the
principal's domicile appoints any conservator or other fiduciary charged with the
management of all of the principal's property or all of the principal's property except
for specified exclusions, the agent is accountable to the court appointed fiduciary as
well as to the principal. The court appointed fiduciary has the same power to revoke or
amend the power of attorney that the principal would have if the principal were not
disabled or incapacitated.
B. A principal may nominate, by a durable power of attorney, the conservator or the
guardian of the principal for consideration by the court if protective proceedings for
the principal or estate are commenced.
14-5504 Revocation; termination; effect; notice
A. The death of a principal who has executed a durable power of attorney does not
revoke or terminate the agency as to the agent or other person who, without actual
knowledge of the death of the principal, acts in good faith under the power. Any action
taken in good faith pursuant to this subsection, unless otherwise invalid or
unenforceable, binds successors in interest of the principal.
B. The disability or incapacity of a principal who has previously executed a
written power of attorney that is not a durable power does not revoke or terminate the
agency as to the agent or other person who, without actual knowledge of the disability or
incapacity of the principal, acts in good faith under the power. Any action taken in
good faith pursuant to this subsection, unless otherwise invalid or unenforceable, binds
the principal and the principal's successors in interest.
14-5505 Continuance of durable powers of attorney by affidavit
A. An affidavit executed by the agent under a durable power of attorney stating
that the agent did not have at the time of exercise of the power actual knowledge of the
termination of the power by revocation or of the principal's death creates, in the
absence of fraud, a rebuttable presumption of the nonrevocation or nontermination of the
power at that time.
B. If the exercise of the power of attorney requires execution and delivery of any
instrument that is recordable, the affidavit when authenticated for purposes of recording
is also recordable.
C. This section does not affect any provision in a power of attorney for its
termination by expiration of time or occurrence of an event other than express revocation
or a change in the principal's capacity.
14-5506 Powers of attorney; best interest; intimidation; deception; definitions
A. Except as provided in subsection B of this section, an agent shall use the
principal's money, property or other assets only in the principal's best interest and the
agent shall not use the principal's money, property or other assets for the agent's
benefit. An agent who violates this subsection is subject to prosecution under title 13
and civil penalties pursuant to section 46-456.
B. Any authority, the use of which is not in the principal's best interest or is
for the agent's benefit including contracted for commissions, fees or other compensation
shall be specifically identified in detail within the instrument or a written contract
signed by the principal that is specifically identified by the instrument and be
separately initialed by the principal and the witness at the time of execution.
C. If the agent acted with intimidation or deception as defined in section 46-456
in procuring the power of attorney or any authority provided in the power of attorney,
the agent is subject to prosecution under title 13 and civil penalties pursuant to
section 46-456.
D. A power of attorney executed by an adult who does not have capacity is
invalid. In a criminal proceeding, the agent has the burden of proving by clear and
convincing evidence that the principal had capacity. In a civil proceeding, if the party
challenging the validity of a power of attorney on the grounds of lack of capacity proves
by a preponderance of the evidence that, at the time the power of attorney was executed
the principal was a vulnerable adult, the agent has the burden of proving by clear and
convincing evidence that the principal had capacity. In a civil proceeding if the party
challenging the validity of a power of attorney on the basis of lack of capacity does not
prove by a preponderance of the evidence that, at the time the power of attorney was
executed, the principal was a vulnerable adult, the agent has the burden of proving by a
preponderance of the evidence that the principal had capacity.
E. A person who in good faith either assists or deals with an agent is protected as
if the agent properly exercised the agent's power regardless of whether the authority of
that person as the agent has been terminated.
F. For purposes of this section:
1. "Best interest" means the agent acts solely for the principal's benefit.
2. "Capacity" means that at the time the power of attorney was executed the
principal was capable of understanding in a reasonable manner the nature and effect of
the act of executing and granting the power of attorney.
3. "Vulnerable adult" has the same meaning prescribed in section 46-451.
14-5507 Applicability of article
This article does not apply to health care directives that are validly executed
under section 36-3221 and does not establish authority under a durable power of attorney
for the purposes of health care decision making.
14-5601 Establishment of office of public fiduciary; appointments; costs
A. Each county board of supervisors, by resolution or ordinance, shall establish
the office of and appoint a public fiduciary. The supreme court shall certify each public
fiduciary pursuant to section 14-5651.
B. The public fiduciary, with the consent of and at salaries fixed by the board of
supervisors, may appoint assistants, deputies, stenographers, clerks and other employees
as necessary to conduct the affairs of the office. The appointments shall be in writing
and filed in the office of the county recorder. Assistants and deputies hold office at
the pleasure of the public fiduciary and the board of supervisors.
C. Costs incurred in conducting the office of public fiduciary shall be a charge
against the county.
14-5602 Duties of public fiduciary; appointment; law enforcement agency; temporary protection of property; definition
A. The court shall appoint a public fiduciary for those persons or decedents'
estates in need of guardianship, conservatorship or administration and for whom there is
no person or corporation qualified and willing to act in that capacity.
B. On filing a statement of administration pursuant to section 14-5605 or on
obtaining an order to preserve and protect property pursuant to section 14-5606, the
public fiduciary shall take possession of all properties and perform the duties
prescribed in sections 14-5605 and 14-5606 when, in the performance of its duties, a law
enforcement agency is unable to determine or locate the heirs or personal representative
of a deceased person. Pending action by the public fiduciary, the law enforcement agency
shall protect all properties of the deceased person.
C. The public fiduciary may apply for and become a designated payee of benefits
payable to a person under federal or state law.
D. For the purposes of this section, "law enforcement agency" means either:
1. The police agency of an incorporated city or town.
2. The county sheriff of an unincorporated area of a county.
14-5603 Deposit of funds; investment plan
A. All funds coming into the custody of the public fiduciary shall be deposited in
the county treasury and disbursed at the direction of the public fiduciary or shall be
deposited or invested in one or more insured banks or in one or more insured credit
unions authorized to do business in the county or in one or more insured savings and loan
associations authorized to do business in the county, and if there are no such insured
banks, insured credit unions or insured savings and loan associations in the county, then
the public fiduciary may deposit such funds in any insured bank or insured credit union
or insured savings and loan association in the state. Money deposited with the county
treasurer or deposited or invested with an insured bank, insured credit union or insured
savings and loan association shall be withdrawn only at the direction of the public
fiduciary.
B. The public fiduciary may establish or continue an estate or investment plan of
his ward if all of the following apply:
1. The public fiduciary receives the approval of the court for the plan.
2. The plan is consistent with the standard of care imposed on trustees in section
14-7302.
3. The public fiduciary has obtained a surety bond in the amount of the assets
within the plan if the court finds that a surety bond is necessary or desirable to
protect the assets within the plan. 14-5604 Claim against estate for expenses
A. The public fiduciary has a claim for all of the following against the estate of
the ward, protected person or decedent:
1. Reasonable expenses incurred in the execution of the guardianship,
conservatorship or public administration.
2. Compensation for the fiduciary's services and the fiduciary's attorney that the
court in which the accounts are settled deems just and reasonable.
3. An annual assessment in lieu of bond of twenty-five dollars and one-fourth of
one per cent of the amount of an estate greater than ten thousand dollars. A fiduciary
shall not take this assessment from the ward's or protected person's estate if the ward
or protected person is eligible for supplemental security income benefits or would be
eligible for these benefits if that person were not in a public institution.
B. The public fiduciary shall pay all funds received pursuant to this section to
the county treasurer for deposit in the county general fund.
14-5605 Letter testamentary or of administration not required; statement to be filed; powers and duties
A. Whenever the gross assets of an estate do not exceed in value twenty thousand
dollars the public fiduciary may act without the issuance of letters testamentary or of
administration by filing with the superior court a statement of administration showing
the name and domicile of the decedent, the date and place of death and the name, address
and relationship of each known heir or devisee. The filing of this statement has the
same effect as the issuance of formal letters testamentary or of administration.
B. In the event the gross assets of an estate in which the public fiduciary
commences to act pursuant to a statement of administration later are found to exceed
twenty thousand dollars the public fiduciary shall apply for letters for the estate.
C. In the event the public fiduciary, acting in any estate pursuant to subsection A
of this section, ascertains the names and whereabouts of persons believed to be heirs or
devisees of the estate who are not shown in the statement of administration, the public
fiduciary shall file a supplemental statement reflecting the new information.
D. On filing the statement of administration, the public fiduciary may:
1. Take possession of, collect, manage and secure the real and personal property of
the decedent.
2. Sell the decedent's real and personal property at private or public sale,
without prior court order, if monies are needed to pay expenses of administration,
funeral expenses or just claims against the estate and pay these expenses in the order
prescribed in section 14-3805.
3. Distribute real or personal property to the estate's personal representative if
one is appointed after the statement of administration is filed.
4. Distribute real and personal property to any successor to the decedent who
presents an affidavit complying with the requirements of section 14-3971.
5. Sell or abandon perishable property and other property of the decedent if
necessary to preserve the estate.
6. Pursuant to section 14-5103, for the use and benefit of a minor heir or devisee
who has no guardian, pay the share of an intestate estate or a devise due him if it does
not exceed five thousand dollars.
7. Make necessary funeral arrangements for the decedent and pay reasonable funeral
charges with estate assets.
8. Distribute allowances and exempt property pursuant to chapter 2, article 4 of
this title.
9. Except as otherwise limited by this section, act in accordance with the powers
of a court appointed personal representative as prescribed in section 14-3715.
E. No later than twelve months from the filing of the statement of administration,
the public fiduciary shall file with the court an accounting and a proposed distribution
and claim for fees if the estate is ready to be settled. If the estate is not ready to
be settled the accounting shall contain a statement explaining the delay. The public
fiduciary shall file subsequent accountings and explanations on an annual basis until the
estate is settled.
F. The public fiduciary shall mail a copy of the accounting, the claim for fees and
a proposal for distribution to each person entitled to receive this information including
heirs, devisees, known creditors and other persons who have demanded
notice. Notification shall be by certified mail. Notice is not required if the public
fiduciary cannot reasonably ascertain necessary names and addresses.
G. A decree settling the account and approving the distribution and claim for fees
may be entered without further notice or proceedings and with the same effect as in an
accounting proceeding unless an objection or claim is properly filed with the court
within thirty days after the public fiduciary mails an accounting pursuant to subsection
F of this section.
14-5606 Additional powers and duties of the public fiduciary
A. If the gross assets of the estate exceed twenty thousand dollars, the public
fiduciary may file with the court a verified petition to preserve and protect estate
property if action is needed to protect an estate but no probate proceedings have been
filed and no affidavit of collection has been tendered pursuant to section 14-3971. The
petition shall include the following:
1. The name and domicile of the decedent.
2. The date and the place of death.
3. The names, addresses and relationships of known heirs or devisees.
4. A declaration that the gross assets of the estate are believed to exceed twenty
thousand dollars.
5. A declaration that the decedent died in the county or left real or personal
property in the county or that personal property arrived in the county after the
decedent's death.
6. A declaration that there is no person eligible to act as personal representative
or that the personal representative named in the will has refused or neglected to act, is
dead or his whereabouts are unknown or is not eligible to receive letters testamentary at
the present time.
7. A declaration that immediate action is necessary to make funeral arrangements
and pay reasonable funeral charges or to preserve and protect the estate.
B. The court may grant the petition and enter an order without prior notice and a
hearing on a finding of good cause.
C. If the court grants the petition, the public fiduciary shall send a copy of the
petition and the court order to each known heir, devisee and interested party within ten
business days of entry of the order.
D. If the court grants the petition, the public fiduciary may take the following
action unless otherwise limited by the court:
1. Take possession of, collect and secure the decedent's real or personal property
located in the county.
2. Make necessary funeral arrangements for the decedent and pay the reasonable
funeral charges.
3. Institute an inquiry as to any matter affecting the estate of the decedent.
4. Sell perishable property and other property of the decedent if the estate
requires this action.
5. Defray the expenses of the fiduciary activities and the expenses incidental to
the public fiduciary's application for letters from the decedent's estate.
6. Pursuant to section 14-5103, for the use and benefit of a minor heir or devisee
who has no guardian, pay the share of an intestate estate or a devise due that person if
that share is less than five thousand dollars.
7. Without prior court order, sell real or personal property with an estimated
value of less than five thousand dollars if this is necessary to pay reasonable funeral
expenses or to preserve and protect the assets of the estate and prevent waste.
8. With prior court order and on reasonable notice to interested parties, sell real
or personal property with an estimated net value of five thousand dollars or more if this
is necessary to preserve and protect the assets of the estate and prevent waste.
E. The public fiduciary may obtain subpoenas and subpoenas duces tecum from the
court in order to conduct the inquiry under subsection D, paragraph 3 of this
section. The court may hold a person in contempt if the person fails to comply with the
subpoena.
F. The expenses under subsection D, paragraph 5 of this section are a legal charge
against the county if the decedent's estate is incapable of paying them.
G. On receiving notice of the appointment of a personal representative of the
estate or on receiving valid affidavits for succession to real or personal property, the
public fiduciary shall immediately transfer to the personal representative or affiant the
control and possession of the property. The public fiduciary may subtract any monies
claimed as fiduciary fees and costs pursuant to section 14-5604. The public fiduciary
shall file an accounting and claim for fees with the court and shall send copies by
certified mail to the personal representative or the affiant and known heirs, devisees
and interested parties. If no objections are filed with the court within thirty days of
this notice, the court without further notice or hearing may approve and settle the
account, approve claims by the public fiduciary against the estate and discharge the
public fiduciary from further duties and liability.
H. A person paying, delivering, transferring or issuing property or evidence of
property is discharged and released to the same extent as if that person dealt with a
personal representative of the decedent.
I. The public fiduciary may begin an action to probate the decedent's estate if
probate has not begun or an affidavit of succession to real and personal property is not
submitted at least forty days after the public fiduciary files the petition to preserve
and protect the estate.
14-5651 Fiduciaries; certification; qualifications; conduct; removal; exemption; definitions
A. Except as provided by subsection G of this section, the superior court shall not
appoint a fiduciary unless that person is certified by the supreme court. The supreme
court shall administer the certification program and shall adopt rules and establish and
collect fees necessary for its implementation. The supreme court shall deposit, pursuant
to sections 35-146 and 35-147, the monies collected pursuant to this subsection in the
confidential intermediary and fiduciary fund established by section 8-135. At a minimum
the rules adopted pursuant to this subsection shall include the following:
1. A code of conduct.
2. A requirement that fiduciaries post a cash deposit or surety bond with the
supreme court.
3. Minimum qualifications.
4. Biennial renewal of certification.
B. As a condition of appointment, the supreme court shall require each applicant
for the position of fiduciary to submit a full set of fingerprints to the supreme court
for the purpose of obtaining a state and federal criminal records check to determine the
suitability of the applicant pursuant to section 41-1750 and Public Law 92-544. The
department of public safety may exchange this fingerprint data with the federal bureau of
investigation.
C. An applicant for certification shall:
1. Be at least twenty-one years of age.
2. Be a citizen of this country.
3. Not have been convicted of a felony.
4. Attest that the applicant has not been found civilly liable in an action that
involved fraud, misrepresentation, material omission, misappropriation, theft or
conversion.
5. Attend an initial session and thereafter biennial training sessions prescribed
by the supreme court on the duties of a fiduciary.
6. Consent in the application form to the jurisdiction of the courts of this state
for all actions arising under this article or article 6 of this chapter and appoint the
fiduciary program coordinator as the lawful agent for the purpose of accepting service of
process in any action, suit or proceeding that relates to the duties of a fiduciary. The
program coordinator shall transmit by registered mail to the person's last known address
the lawful service of process accepted by the program coordinator. Notwithstanding the
provisions of this paragraph, service of process on a public fiduciary or the department
of veterans' services shall be made pursuant to the ARIZONA rules of civil procedure.
D. The superior court shall, and any person may, notify the supreme court if it
appears that a fiduciary has violated a rule adopted under this section. The supreme
court shall then conduct an investigation and hearing pursuant to its rules. If the
supreme court determines that the fiduciary committed the violation it may revoke the
fiduciary's certification or impose other sanctions, including civil penalties, and shall
notify the superior court in each county of this action. The supreme court may then
also require the fiduciary to forfeit a cash deposit or surety bond to the extent
necessary to compensate the court for the expenses it incurred to conduct the
investigation and hearing.
E. A person who in good faith provides information or testimony regarding a
fiduciary's misconduct or lack of professionalism is not subject to civil liability.
F. Persons appointed by the chief justice to serve in an advisory capacity to the
fiduciary program, staff of the fiduciary program, hearing officers and employees of the
administrative office of the courts who participate in the fiduciary program are immune
from civil liability for conduct in good faith that relates to their official duties.
G. The requirements of this section do not apply to a financial institution. This
exemption does not prevent the superior court from appointing a financial institution as
a fiduciary. The supreme court may exempt a fiduciary from the requirements of this
section for good cause.
H. This section does not grant any fiduciary or any applicant for a certificate as
a fiduciary the right to a direct appeal to the supreme court.
I. The supreme court may receive and expend monies from the confidential
intermediary and fiduciary fund established pursuant to section 8-135 for the purposes of
performing the duties related to fiduciaries pursuant to this section.
J. For the purposes of this section:
1. "Fiduciary" means:
(a) A person who for a fee serves as a court appointed guardian or conservator for
one or more persons who are unrelated to the fiduciary.
(b) A person who for a fee serves as a court appointed personal representative and
who is not related to the decedent, is not nominated in a will or by a power conferred in
a will and is not a devisee in the will.
(c) A public fiduciary appointed pursuant to section 14-5601.
(d) The department of veterans' services.
2. "Financial institution" means a bank that is insured by the federal deposit
insurance corporation and chartered under the laws of the United States or any state, a
trust company that is owned by a bank holding company that is regulated by the federal
reserve board or a trust company that is chartered under the laws of the United States or
this state. 14-5701 Fiduciary arrest warrants
A. In an action or proceeding to enforce a court action in a case filed pursuant to
this title or title 41, chapter 4, article 1, or on motion by a party or on its own
motion, the court may issue a fiduciary arrest warrant if the court finds that all of the
following apply to the person for whom the warrant is sought:
1. The person was ordered by the court to appear personally at a specific time and
location.
2. The person received actual notice of the order, including a warning that the
failure to appear might result in the issuance of a fiduciary arrest warrant.
3. The person failed to appear as ordered.
B. The judicial officer shall order the fiduciary arrest warrant and the clerk
shall issue the warrant. The warrant shall contain the name of the person to be arrested
and other information required to enter the warrant in the ARIZONA criminal justice
information system. The warrant shall command that the named person be arrested and
either remanded to the custody of the sheriff or brought before the judicial officer or,
if the judicial officer is absent or unable to act, before the nearest or most accessible
judicial officer of the superior court in the same county. The warrant issued pursuant to
this section remains in effect until it is executed or extinguished by the court.
C. The warrant shall set forth a bond in a reasonable amount to guarantee the
appearance of the arrested person or an order that the arrested person be held without
bond until the arrested person is seen by a judicial officer.
D. A facsimile of the judicial officer's signature that is applied to the fiduciary
arrest warrant at the direction and under the supervision of the judicial officer is
deemed to be the authorized signature of the judicial officer.
E. A peace officer acting pursuant to a fiduciary arrest warrant has the same
powers as if acting pursuant to a criminal arrest warrant.
14-5702 Time and manner of execution; information
A. A fiduciary arrest warrant is executed by the arrest of the person named in the
warrant. The fiduciary arrest warrant may be executed at any time.
B. When making an arrest pursuant to a fiduciary arrest warrant the arresting
officer shall inform the person named in the warrant that the arresting officer has a
fiduciary arrest warrant unless:
1. The named person flees or forcibly resists before the arresting officer has an
opportunity to inform the named person.
2. Providing this information will imperil the arrest.
C. To execute a fiduciary arrest warrant, the arresting officer may use reasonable
force to enter any building in which the person named in the warrant is or is reasonably
believed to be.
D. The arresting officer does not need to possess the fiduciary arrest warrant at
the time of the arrest. If after the arrest the arrested person requests to see the
fiduciary arrest warrant the arresting officer shall show the arrested person a copy of
the warrant as soon as practicable.
E. The arrested person shall be brought before the issuing judicial officer as soon
as possible or, if that judicial officer is absent or unable to act, before the nearest
or most accessible judicial officer of the superior court in the same county. The
arrested person shall be brought before a judicial officer of the superior court in the
issuing county or the county of arrest within twenty-four judicial business hours after
the execution of the warrant. If the arrested person is arrested in a county other than
the county in which the fiduciary arrest warrant was issued, the arresting officer shall
notify the sheriff in the county of issue who shall take custody of and transport the
arrested person to the issuing judicial officer as soon as possible.
14-5703 Procedure after arrest; payment for release from custody
A. When a person who is arrested pursuant to a fiduciary arrest warrant is brought
before the court, the judicial officer shall advise the arrested person of the nature of
the proceedings and shall set a date for the next court appearance.
B. The arrested person may be released from custody pending the hearing if the
arrested person pays the amount set by the court or a larger amount as the court
determines. The court may not reduce the amount ordered to be paid. The arrested person
shall not be released from custody without paying the amount unless the court finds in
writing or on the record that a compelling reason exists to release the arrested person.
C. Monies received pursuant to this section shall be deposited with the clerk of
the court until further order of the court unless the court orders that the monies be
paid to an estate or other fiduciary.
14-5704 Entry into criminal information system
A fiduciary arrest warrant shall be entered in the wanted person file of the ARIZONA
criminal justice information system.
