Sunday, October 3, 2010

Maricopa County Probate Court - Life savings, freedom taken away

Outside of being imprisoned, no action in the American justice system deprives a person of so many rights as being declared incapacitated in Probate Court.

First, a judge rules that you can't care for yourself. Then strangers can be given control of every aspect of your life. All that you've worked for and love - your savings, property, even your ability to contact your family - can be taken away and given to professionals to manage, at enormous expense to you.

Wills, trusts and powers of attorney may not matter.

Probate Court is meant to be a safe harbor for people in crisis because of advanced age or illness, a place where a judge helps protect their assets and well-being.

But an Arizona Republic investigation has found that Maricopa County Probate Court allows the assets of some vulnerable adults to become a cash machine for attorneys and for fiduciary companies, which manage their affairs.

The fees charged can drain the savings of even wealthy individuals in less than a year.

Among the investigation's findings:

Issue I: Disputes trigger the problems. Fights among family members lead to protracted, costly legal battles. Judges often fail to step in early to stop the feuding and contain costs.

Issue II: Fees mount quickly. Bills for attorneys, fiduciaries and others can escalate at a staggering pace. Family members contend that professional fiduciaries bill people's assets aggressively.

Issue III: Cozy relationships raise questions. Close ties among judges, attorneys and fiduciaries can result in apparent conflicts of interest. These relationships can endanger the court's ability to hold attorneys and fiduciaries accountable for their billings and other practices.

Issue IV: Objectors take the blame. Relatives or lawyers who try to fight fiduciaries' bills may instead find themselves blamed by the court for causing delays and held responsible for extra costs.

Issue V: Oversight is lax. Judges, who have ultimate responsibility for a vulnerable adult's care and assets, are allowed to scrutinize and reject fees, but substantial denials are rare. The state board that licenses fiduciaries does little to question their conduct, especially if a judge already has ruled on a case.

Not all cases in Probate Court end up in expensive fights. In most of the 5,832 ongoing adult cases in the Probate and Mental Health Department of the Maricopa County Superior Court, a family member or the public fiduciary manages the money or care, and costs are not an issue.

But costs begin to mount when a judge appoints a professional fiduciary because no family member is willing or available to run the person's affairs. The judge also appoints a fiduciary when family members are feuding.

And when family members disagree with one another or with the fiduciary, costs can soar: All parties may have one attorney or more, and most of them are allowed to bill the incapacitated adult's assets.

Lawyers and fiduciaries defend their work, saying they help settle family feuds and arrange care when no one else will. Still, many acknowledge the system needs reform.

Critics say Probate Court has become a vehicle for exploitation.

Columns published since December 2008 in The Republic, which documented how rampant fees drained much of the assets of incapacitated adults, helped push the Arizona Supreme Court to investigate. A committee of judges, lawyers, fiduciaries and citizens, most involved in probate cases, will make initial recommendations for changes on Oct. 21. "I think the entire system needs to be re-examined," said Pinal County Judge William O'Neil, who is on the committee. "More and more people are using the courts for these issues, and there haven't been state laws and rules to keep up."

by Robert Anglen and Pat Kossan The Arizona Republic Sept. 26, 2010 12:00 AM

Maricopa County Probate Court - Life savings, freedom taken away

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