Here is the quandry a “protected person” (a person subject to a conservatorship) can find himself. Sometimes the conservator turns out to be a poor manager of money (or dishonest). Or, perhaps the person appointed as guardian is not looking out for the incapacitated person’s best interest. In that case, if a conservatorship is in place, the person subject to the conservatorship (or guardianship) finds himself in a strange position. The Arizona statute provides lots of due process protections during the process of imposing a guardianship or conservatorship. For instance, the court will appoint an attorney for the purportedly protected person or incapacitated person during the court proceeding to determine whether a guardianship or conservatorship is needed.
However, once a conservator is appointed, the protected person or ward is technically no longer able to prosecute a legal proceeding on his or her behalf. The conservator is now the person who is responsible for bringing court actions. A.R.S. § 14-5424 (C)(24). The problem is that if the conservator is dishonest, lazy or a poor manager, then you have a “fox guarding the chicken coop” situation.
Nevertheless, an attorney can still bring an action on behalf of the protected person/ward, because the court has inherent authority to protect the rights of a protected person or ward. Cubbison v. Cubbison (1935) 45 Ariz. 14, 40 P.2d 86.
Also, the statute provides that “With respect to persons having equal priority, the court shall select the [a conservator] 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.” A.R.S. § 14-5410 (B). There is a similar provision for guardians.
This is sufficient authority to petition the court to remove the current guardian or conservator and have a replacement appointed.
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Paul E. Deloughery is the founding partner at the Scottsdale law firm of Deloughery & Ruotolo, P.C. You may contact Paul at 602-443-4888 or by email at paul@delougherylaw.com. For more information, go to www.delougherylaw.com.
Disclaimer: The information contained in this article is made available for general informational purposes only, and is not intended to constitute specific legal advice or to be a substitute for advice from qualified counsel. For that reason, you should not act or refrain from acting based on any information in this article without first obtaining advice from professional counsel qualified in the applicable subject matter and jurisdictions.
Categories: Inheritance Rights · Rights of Families · Wills and Trusts
When an estate or trust’s only asset is real estate, that makes it very difficult to administer in these economic times. I have been soliciting loans from private investors (such as Probate and Trust Financing Solutions, LLC) for short term financing so that these estates have cash to keep up the current mortgage payments until the property sells.
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Paul E. Deloughery is the founding partner at the Scottsdale law firm of Deloughery & Ruotolo, P.C. You may contact Paul at 602-443-4888 or by email at paul@delougherylaw.com. For more information, go to www.delougherylaw.com.
Disclaimer: The information contained in this article is made available for general informational purposes only, and is not intended to constitute specific legal advice or to be a substitute for advice from qualified counsel. For that reason, you should not act or refrain from acting based on any information in this article without first obtaining advice from professional counsel qualified in the applicable subject matter and jurisdictions.
Categories: Inheritance Rights · Wills and Trusts
Have you ever seen the movie, “While You Were Sleeping?” In the movie, a man befalls an accident and lies in a coma for a time. While he is asleep in this coma, a young woman who admired him by afar befriended his family, telling them that she was his fiance. When he finally awakes, he doesn’t remember that he was not affinanced to this young woman, who has of course, fallen in love with his brother.
Likewise, in real life, there is an important update that everyone should be aware of in a clinical trial involving medication for the treatment of seizures. The study is to try to find out whether or not giving anti-seizure medications work better or more quickly when injected directly into the vein or when given by intra-muscular (or into the muscle) injection.
In most studies, individuals are informed prior to consenting to participate in a study, any laboratory testing and medications that will be administered during the study.
The Food and Drug Administration (FDA) has a special rule that has been put in place for situations when people are considered too sick or incapacitated to agree or decline to participate in research. This situation, called the “Exception From Informed Consent, ” is allowed when there are few or no proven treatments for a life threatening medical situation and the person is unconscious or unable to give consent. Due to this rule, called EFIC, everyone that has or may have a prolonged seizure will be automatically enrolled in the study, UNLESS they “opt out” prior to the study beginning. Anyone who does not wish to participate in the study must call 1-866-929-6388 to mark their intention not to participate and are assigned a braclet to wear that will identify that decision.
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Paul E. Deloughery is the founding partner at the Scottsdale law firm of Deloughery & Ruotolo, P.C. You may contact Paul at 602-443-4888 or by email at paul@delougherylaw.com. For more information, go to www.delougherylaw.com.
Disclaimer: The information contained in this article is made available for general informational purposes only, and is not intended to constitute specific legal advice or to be a substitute for advice from qualified counsel. For that reason, you should not act or refrain from acting based on any information in this article without first obtaining advice from professional counsel qualified in the applicable subject matter and jurisdictions.
Categories: Elder Abuse · Family Law · Uncategorized
If you want to pass real estate (a family cabin, ranch or other homestead that you want to stay in the family) to your minor children, what are your options?
The difficulties lie in the fact that minor children cannot own real estate. Without a trust, there would have to be a conservatorship until they turn 18. Also, how would the children (or the trustees or conservator) pay the taxes, upkeep, mortgage, and other expenses?
In this case, there are two main options. First, you can create a trust to hold the property now and deed the property into it now. You establish trustees and alternate trustees now. This gives unity of management immediately and can be arranged to deal with the future situation when there will be multiple 5 beneficial owners with differing uses and interests in the property itself.
Second, create testamentary trusts for your kids in your will. The property interest will have to pass through probate, but the trustee will control the property for the kids until the distribution age. I suggest that there NOT be a specific age at which to inherit the property.
I have arranged the options in order of preference, in my opinion.
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Paul E. Deloughery is the founding partner at the Scottsdale law firm of Deloughery & Ruotolo, P.C. You may contact Paul at 602-443-4888 or by email at paul@delougherylaw.com. For more information, go to www.delougherylaw.com.
Disclaimer: The information contained in this article is made available for general informational purposes only, and is not intended to constitute specific legal advice or to be a substitute for advice from qualified counsel. For that reason, you should not act or refrain from acting based on any information in this article without first obtaining advice from professional counsel qualified in the applicable subject matter and jurisdictions.
Categories: Family Law · Inheritance Rights · Protect Your Inheritance
In today’s time, digital photographs are as easy and accessible to us as checking the time on your watch. But this has not always been the case. The old way of having to take the photographs, develop them and put them in albums used to be the way to go. This also increases the chances of losing precious memories when those pictures are lost or damaged.
Oftentimes when someone we love passes away, there are limited photographic memories left to distribute to family members. There are some very simple ways that this can be avoided.
For example, I just received an email from a cousin in Germany. He sent me photos of the travel itinerary, passenger list and other documents from when my grandfather immigrated to the U.S. I was excited because I had never seen these documents before, and I wanted to keep them for my kids. So, I printed them out and started to organize a binder with photographs and genealogical information that I could pass to my two children.
The problem is this – I have two children and I was making ONE binder. This is very common. Most people only make one copy of photographs and assume that the family will be able to share.
My solution is whenever possible to have one of everything to pass down to my two children. I have one box with my daughter’s drawings and school work, and one for my son. And now I have two binders with genealogical information – and each is already labeled for each child.
So, if you (or your parents) haven’t already made copies of photographs for anyone who wants one – please do so now. The cost is much cheaper (in both emotional and financial terms) than if your family fights over the photos. The worst case scenario is the kinds of cases that I see occasionally in which adult children go to court to fight over who is entitled to receive photographs and copies.
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Paul E. Deloughery is the founding partner at the Scottsdale law firm of Deloughery & Ruotolo, P.C. You may contact Paul at 602-443-4888 or by email at paul@delougherylaw.com. For more information, go to www.delougherylaw.com.
Disclaimer: The information contained in this article is made available for general informational purposes only, and is not intended to constitute specific legal advice or to be a substitute for advice from qualified counsel. For that reason, you should not act or refrain from acting based on any information in this article without first obtaining advice from professional counsel qualified in the applicable subject matter and jurisdictions.
Categories: Family Law · Protect Your Inheritance · Rights of Families · Wills and Trusts
Probably everyone has heard a story about a divorce where both parties racked up huge legal fees fighting over the pet dog and the dishes. Well, the same thing can happen in a probate or trust administration if things are not done correctly. There is no substitute for the help of an experienced probate attorney to help you avoid these legal landmines. For more information about this issue, click here to see an article that I recently added to my website.
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Paul E. Deloughery is the founding partner at the Scottsdale law firm of Deloughery & Ruotolo, P.C. You may contact Paul at 602-443-4888 or email. For more information, go to www.delougherylaw.com.
Disclaimer: The information contained in this article is made available for general informational purposes only, and is not intended to constitute specific legal advice or to be a substitute for advice from qualified counsel. For that reason, you should not act or refrain from acting based on any information in this article without first obtaining advice from professional counsel qualified in the applicable subject matter and jurisdictions. |
Categories: Family Law · Rights of Families
One of the most common mistakes made by persons who have successfully been appointed guardian or temporary conservator is to fail to have the “incapacitated person” (aka the ward), personally served with the court pleadings upon appointment of a temporary guardian.
A.R.S. § 14-5310(B)(4.) provides, “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.”
A.R.S. § 14-5401.01(B)(4) provides a comparable provision for temporary conservatorships.
The Maricopa County Superior Court’s website has a useful checklist for persons who have been appointed. Also, just be sure to read the Order that appoints you as the guardian or conservator.
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Paul E. Deloughery is the founding partner at the Scottsdale law firm of Deloughery & Ruotolo, P.C. You may contact Paul at 602-443-4888 or email. For more information, go to www.delougherylaw.com.
Disclaimer: The information contained in this article is made available for general informational purposes only, and is not intended to constitute specific legal advice or to be a substitute for advice from qualified counsel. For that reason, you should not act or refrain from acting based on any information in this article without first obtaining advice from professional counsel qualified in the applicable subject matter and jurisdictions. |
Categories: Inheritance Rights · Protect Your Inheritance · Wills and Trusts
An action against a trustee for breach of trust much generally be commenced within two years after (1) the resignation, death or removal of a trustee, (2) the termination of the benericiary’s interest, or (3) the termination of the trust. See the Arizona Trust Code at A.R.S. 14-11005. This limitations period can be shortened to one year by sending a report that adequately discloses the the existence of a potential claim for breach of trust and informs the beneficiary of the time allowed for commencing a proceeding. The date the notice is sent is the beginning of the one-year period. Such a report must provide sufficient information for the beneficiary to know, or that would indicate he “should have inquired,” of the potential claim.
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Paul E. Deloughery is the founding partner at the Scottsdale law firm of Deloughery & Ruotolo, P.C. You may contact Paul at 602-443-4888 or email. For more information, go to www.delougherylaw.com.
Disclaimer: The information contained in this article is made available for general informational purposes only, and is not intended to constitute specific legal advice or to be a substitute for advice from qualified counsel. For that reason, you should not act or refrain from acting based on any information in this article without first obtaining advice from professional counsel qualified in the applicable subject matter and jurisdictions.
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Categories: Inheritance Rights · Wills and Trusts
The beneficiaries of a trust are usually entitled to receive an accounting, whether by virtue of the terms of the trust or because it is required by applicable statute (for example, the applicable Arizona statute is found at A.R.S. § 14-7303). However, statutes and trust documents rarely specify exactly what kind of accounting is required. Even if the applicable state statute may not require a detailed accounting, an Arizona court may order such a detailed accounting as an equitable remedy. 3 Am. Jur. 2d Agency § 321 (Action for accounting or for breach of duty to account). The type of accounting is relevant because, as the saying goes, the devil is in the details and you as a beneficiary want a full disclosure of all the relevant facts to be able to protect your interests and to know if the trustee is doing a good job.
A detailed accounting might include the following:
(1) A statement of receipts and disbursements of principal and income that have occurred during the last complete fiscal year of the trust or since the last account.
(2) A statement of the assets and liabilities of the trust as of the end of the last complete fiscal year of the trust or as of the end of the period covered by the account.
(3) The trustee’s compensation for the last complete fiscal year of the trust or since the last account.
(4) The agents hired by the trustee, their relationship to the trustee, if any, and their compensation, for the last complete fiscal year of the trust or since the last account.
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Paul E. Deloughery is the founding partner at the Scottsdale law firm of Deloughery & Ruotolo, P.C. You may contact Paul at 602-443-4888 or by email at paul@delougherylaw.com. For more information, go to www.delougherylaw.com.
Disclaimer: The information contained in this article is made available for general informational purposes only, and is not intended to constitute specific legal advice or to be a substitute for advice from qualified counsel. For that reason, you should not act or refrain from acting based on any information in this article without first obtaining advice from professional counsel qualified in the applicable subject matter and jurisdictions.
Categories: Uncategorized
Have you ever wondered what would happen if both a husband and wife die without probate?
In the event that a husband and wife both die, and there has not been a probate on either of their estates, you can actually probate both estates. You would file both Wills, and caption the pleadings like “In The Matter of the Estates of Matthew Blank and Missy Blank.”
For more information, contact me.
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Paul E. Deloughery is the founding partner at the Scottsdale law firm of Deloughery & Ruotolo, P.C. You may contact Paul at 602-443-4888 or email. For more information, go to www.delougherylaw.com.
Disclaimer: The information contained in this article is made available for general informational purposes only, and is not intended to constitute specific legal advice or to be a substitute for advice from qualified counsel. For that reason, you should not act or refrain from acting based on any information in this article without first obtaining advice from professional counsel qualified in the applicable subject matter and jurisdictions.
Categories: Inheritance Rights · Rights of Families · Wills and Trusts
