The Wingspread era
In 1987, the Associated Press (AP) published a series of articles (Guardians of the Elderly: An Ailing System) following its examination of 2,200 randomly selected guardianship court files. The AP report denounced the nation's guardianship system as "a dangerously burdened and troubled system that regularly puts elderly lives in the hands of others with little or no evidence of necessity, then fails to guard against abuse, theft, and neglect" (Bayles and McCartney, 1987).
The 1987 AP series, as well as a 1988 National Guardianship Symposium (the "Wingspread Conference") sponsored by the American Bar Association (ABA), prompted a hearing by the U.S. House Committee on Aging. State legislatures throughout the country responded by passing a number of guardianship measures. State reforms featured five key trends: (1) stronger procedural protections for alleged incapacitated persons, (2) a more functional determination of incapacity, (3) use of limited guardianship and emphasis on the principle of the "least restrictive alternative," (4) stronger court monitoring and (5) development of public guardianship programs (see Wards of the State).
In the late 1980s and 1990s, a host of national, state and local efforts sought to strengthen guardianship practice (see Guardian Accountability: Then and Now). Major events and more recent follow-up efforts include the following:
- The National Guardianship Association was created in 1987 and produced Standards of Practice and a Code of Ethics.
- A study by the American Bar Association profiled best practices in guardianship monitoring. The ABA and AARP updated the study in 2006. (More recently, improvements in monitoring practices have become evident, as a 2020 survey conducted by the National Center for State Courts (NCSC) demonstrates, especially in the use of technology, but critical needs remain in the areas of staffing and improved data collection.)
- Legal Counsel for the Elderly Inc., at AARP, coordinated the National Guardianship Monitoring Program, which used trained volunteers to be the "eyes and ears" of the court.
- The National Probate Court Standards were released and included standards related to procedural protections, limited guardianships, use of less restrictive guardianship alternatives and court procedures to monitor guardian activities.
- In 2017, the Uniform Law Commission published the Guardianship, Conservatorship and Other Protective Arrangements Act. This updates the previously published 1997 Guardianship and Protective Proceedings Act and the 2007 Uniform Guardianship and Protective Proceedings Act.
Second National Guardianship Summit: the Wingspan conference
In 2001, seven national groups convened a second national guardianship conference ("Wingspan"), resulting in a set of recommendations for action. Additionally in 2001, the first National Summit on Elder Abuse called elder abuse "a crisis requiring full mobilization." Two years later the U.S. Senate Special Committee on Aging held hearings on guardianship, the first in a decade, entitled "Guardianships Over the Elderly: Security Provided or Freedoms Denied?" The hearing profiled cases of misuse of guardianship.
In 2004, the Government Accountability Office released a report on guardianships that noted the lack of cooperation between courts and federal agencies "…that may leave incapacitated people without the protection of responsible guardians and representative payees." In September 2006, the continuation of problems with guardianships was highlighted by the United States Senate Special Committee on Aging. Committee hearings "brought to light the continuing failure of guardianship to protect the elderly from physical neglect and abuse, financial exploitation, and indignity." In November 2018, the Special Committee on Aging released Guardianship for the Elderly and called for "the development of promising new models for guardianship for the elderly."
Third National Guardianship Summit
The National Guardianship Network (NGN)* convened the Third National Guardianship Summit in October 2011, the tenth anniversary of the historic 2001 Wingspan conference. Held in Salt Lake City at the University of Utah's S.J. Quinney College of Law, the Summit was a multi-disciplinary consensus conference that focused on post-appointment guardian reforms and decision-making. The Summit delegates passed a number of substantive and sweeping recommendations for standards for decision-making for all guardians. The final version of the Guardian Standards and Recommendations for Action was released in spring 2012. A series of commissioned papers were published in the Summer 2012 (No.3) issue of the Utah Law Review and are available for download here. Among the Summit’s recommendations was the creation of WINGS—Working Interdisciplinary Networks of Guardianship Stakeholders. Sponsored by the NGN, four states (New York, Oregon, Texas and Utah) received small grants to create WINGS. Their experiences can be found in the State Replication Guide for Working Interdisciplinary Networks of Guardianship Stakeholders.
Fourth National Guardianship Summit
- Rights-Based Guardianships – Enhancing rights of persons subject to guardianship
- Supported Decision-Making
- Limited guardianship, protective arrangements and diverting pipelines
- Rethinking guardianship monitoring and addressing abuse
- Addressing fiduciary responsibilities and tensions
- Guardianship Court Improvement Programs
A series of commissioned papers will be published by the Syracuse Law Review in 2022.
NCSC along with other NGN members hope the recommendations will guide reform efforts in the states to improve oversight and accountability of the guardian system and reduce many unnecessary and overly broad guardianships. The NCSC will take steps to assist states to achieve the recommendations over the coming months and years.
Further court efforts
State court leadership have made efforts to address guardianship issues. In 2008, with funding from the Retirement Research Foundation of Chicago, the NCSC created the Center for Elders and the Courts (CEC). The CEC provides resources for courts on aging issues, elder abuse and guardianship. In 2009, the Conference of Chief Justices (CCJ) and the Conference of State Court Administrators (COSCA) created a Joint Task Force on Elders and the Courts. In 2010, the Joint Task Force issued a report on guardianship data and issues, which put forward a number of recommendations. Also, in 2010, COSCA selected the topic of guardianships as the focus of their White Paper. In 2011, the CCJ/COSCA Joint Task Force became a standing committee. In 2013, the National College of Probate Judges released new Probate Court Standards, which were endorsed by the Conference of Chief Justices. NCSC continues to provide technical assistance and research to help state courts improve guardianships. Efforts have included development and publication in 2020 of the Judicial Response Protocol, funded by the State Justice Institute and publication of the Guardianship/Conservatorship Monitoring Recommended Data Elements, also in 2020.
Ongoing challenges associated with guardianships continue to be highlighted in local media stories and state and local inquiries. For example, in 2010, at the request of the U.S. Senate Special Committee on Aging, the GAO investigated the financial exploitation, neglect and abuse of seniors in the guardianship system. GAO investigators focused on 20 cases in which guardians stole or improperly obtained assets from incapacitated victims. In the majority of these cases, the GAO found that the potential guardians were inadequately screened and there was insufficient oversight of guardians after appointment. Furthermore, the GAO, using fictitious identities, obtained guardianship certifications or met certification requirements in four separate states. None of the courts or certification organizations used by those states checked the credit history or validated the Social Security numbers of the fictitious applicants. The investigation suggested that little had changed to protect incapacitated seniors since the GAO's 2004 report on guardianships.
In 2011, NCSC provided testimony to the U.S. Senate on Protecting Seniors and Persons with Disabilities – An Examination of Court-Appointed Guardians. The testimony notes the need for reliable data and electronic filing systems and supports proposed legislation that would create and fund a Guardianship Court Improvement Program that would improve court processes and outcomes for protected persons.
- Guardianship of the Elderly: Past Performance and Future Promises
- Adult Guardianships: A "Best Guess" National Estimate and the Momentum for Reform
- State Replication Guide for Working Interdisciplinary Networks of Guardianship Stakeholders
*The National Guardianship Network is comprised of the American Bar Association Commission on Law and Aging, American Bar Association Section of Real Property, Trust and Estate Law, the American College of Trust and Estate Counsel, the Center for Guardianship Certification, the National Academy of Elder Law Attorneys, the National Center for State Courts, the National College of Probate Judges and the National Guardianship Association.
A number of state task forces have been created to respond to problems in the guardianship and conservatorship court processes. Task forces tend to be created only after highly critical media reports highlighting individual cases that typically involve the abuse or financial exploitation of protected persons by their guardian/conservator. The following offers a summary of more recent state task force activities.
In 2010, the Arizona Supreme Court established the Committee on Improving Judicial Oversight and Processing of Probate Matters. The Committee released its Final Report in 2011. Many of the Committee’s recommendations have since been put into place through legislation (see Judge Mroz’s PowerPoint presentation for an overview of statutory changes). Recommendations offered by the Committee follow.
The Supreme Court should…
- Advocate for the legislature to expand the statutory “standby” guardianship provisions in the probate code.
- Advocate for the legislature to include a statutory provision in the probate code that exclusively applies to incapacitated minors approaching adulthood.
- Add a rule to the Probate Rules that requires funded, ongoing, unannounced post-appointment visitation of wards and protected persons.
- Add a Probate Rule directing the superior court to create and conduct a funded program for random audits of conservatorship accountings to validate the accuracy of annual or biennial accounts currently required in all adult conservatorship matters.
- Explore funding sources for conducting periodic visitations, reporting, training and random audits.
- Develop statewide uniform training requirements for major participants in guardianship and conservatorship cases in specified ways.
- Give priority to the development of automated case management systems that will substantially improve probate case monitoring and oversight by efficient and cost-effective means.
- Develop uniform, interactive and dynamic electronic probate forms through AZTurboCourt or another online website that will allow documents to be electronically generated and filed. The court should prioritize phasing in AZTurboCourt for probate matters.
- Adopt statewide fee guidelines for attorneys and fiduciaries paid from an estate.
- Add a Probate Rule or ask the legislature to include a statutory provision in the probate code, that requires attorneys, fiduciaries and others seeking fees from an estate in guardianship or conservatorship cases to do so within a specific time frame or be barred from doing so, absent good cause.
- Ask the legislature to adopt a fee-shifting statute specifically applicable to probate matters. The court should also promulgate a corresponding Probate Rule.
- Ask the legislature to adopt a statute mandating arbitration for disputes concerning the reasonableness of fees of fiduciaries and all attorneys paid from the estate.
In 2006, the California Supreme Court created the Probate Conservatorship Task Force to make recommendations to the Judicial Council for reforms and improvements to the conservatorship process. The task force’s final report was submitted to the Judicial Council in 2007 and includes 85 recommendations. In 2008, the Administrative Director of the Courts noted the implementation status of each recommendation. Several laws have been passed based on the task force’s recommendations; however, California’s budget crisis has impacted the ability of the courts to make the necessary reforms to the conservatorship system.
In 2010, the Nebraska Supreme Court created the Joint Review Committee on the Status of Adult Guardianships and Conservatorships in the Nebraska Court System. The Committee issued its final report in 2010. Based on these recommendations, the legislature passed a number of laws that give the Nebraska courts new tools to assess the qualifications of prospective guardians and conservators for vulnerable persons, accurately document and track the assets of protected persons and rigorously monitor the performance of guardians and conservators throughout the duration of their appointments.
Committee recommendations were divided into three categories: (1) changes that can be implemented with little or no fiscal impact; (2) changes that can be implemented over time but may require increased funding; and (3) systemic restructuring that requires further study. The final report included recommendations for the Supreme Court, the State Court Administrator and the judiciary. The Supreme Court recommendations are offered below.
The Supreme Court should…
- Review and adopt forms to be used in all guardian and/or conservator cases statewide.
- Adopt a court rule or support a statutory change regarding required local and federal background checks including Abuse and Neglect Registries, Adult Protective Services and Child Protective Services findings and credit checks.
- Adopt a court rule requiring that filing requirements for guardians and conservators be included on their Letters.
- Adopt a court rule requiring all courts to hand out the Quick Reference Guide with sample forms attached to guardians and conservators with their Letters.
- Adopt a court rule requiring that inventories be sent, by certified mail and regular mail, to all interested parties.
- Adopt a court rule requiring courts/clerks to make sure all interested parties are on the Affidavit of Mailing for the inventories, annual accounting and condition of ward reports that are filed with the court.
- Adopt a court rule requiring that all accountings be reviewed by auditors.
- Adopt a court rule requiring the Statement of Assets that is filed with the Accounting be reviewed by an auditor or probate supervisor and/or magistrate to determine if the bond previously set is adequate.
- Adopt a court rule requiring bank statements and brokerage reports to be submitted with all accountings.
- Adopt a court rule or support amendments to existing statute to require inventories be filed in guardianship cases.
- Adopt a court rule or support a statutory change to require inventories to be filed in guardianship and/or conservatorship cases within 30 days of appointment.
- Adopt a court rule requiring all initial inventories filed with the court be reviewed by the judge to determine if a bond needs to be set and/or the previously set bond is adequate.
- Adopt a court rule requiring the guardian and/or conservator to file their Letters with the Register of Deeds in any county where the ward has real property or an interest in real property.
- Adopt a court rule requiring an updated inventory be filed every year and it should be reviewed by the auditor or the judge to determine if the bond is still sufficient.
- Adopt a court rule requiring that in the absence of any interested parties, the court should appoint a Guardian Ad Litem for the ward.
- Adopt a court rule prohibiting ATM withdrawals or cash back on debit transactions without prior court approval.
- Adopt a court rule requiring guardians and conservators to register with the central database each case they are appointed on.
- Further study the need to enhance and implement regular judicial education for both judges and court staff on the full range of complexity of guardianship and conservatorship cases.
- Establish a standing commission to focus on guardian and conservator issues, including further study emerging best practices for court case management to address the relevant interests of protecting vulnerable adults’ wellbeing and estate and property; judicial specialization and rotation; docket timeliness and management; court monitoring and auditing; and economic, geographical and case volume conditions.
In 2009, the South Carolina Supreme Court Chief Justice created the Task Force on State Courts and the Elderly to “study and make recommendations to the Supreme Court to improve court responses to elder abuse, adult guardianships and conservatorships.” The final report was issued in 2010. The Task Force’s recommendations follow:
- That the Supreme Court replace the Task Force with a Commission on State Courts and the Elderly;
- That the Commission emphasize a variety of non-legislative strategies to the extent practicable in effecting necessary or desirable change;
- That the Commission adopt a philosophy of “agile management” characterized by use of “moving target” goals; pilot and demonstration programs; process re-engineering; and innovative funding and staffing arrangements;
- That the Commission undertake a program to educate and build consensus among the judiciary, the bar, other court constituencies, state and county officials, nongovernmental service organizations and the public.
- Modernize the definition of incapacity to focus on functional limitations. Require proof of incapacity (among other grounds) to appoint a conservator or a guardian.
- Enforce the requirement to prove incapacity by clear and convincing evidence.
- Consider in every case ordering that the respondent be evaluated by a physician or psychiatrist and by a court visitor. Adopt uniform forms on which to report the results of a clinical and social evaluation.
- Appoint a lawyer to represent the respondent in conservatorship cases, as is now done in guardianship cases.
- Require the respondent’s lawyer to be from a roster of qualified lawyers maintained by the Utah State Bar. Establish minimum qualifications for the roster. Appropriate funds to pay the respondent’s lawyer if the respondent cannot afford a lawyer and does not qualify for existing programs.
- Respondent’s lawyer should be an independent and zealous advocate, rather than a guardian ad litem.
- If the court determines that a petition resulted in an order beneficial to the respondent and if funds are available in the estate, permit the court or conservator to pay the reasonable and necessary expenses, costs and attorney fees from the estate.
- Require the respondent to attend all hearings unless the respondent waives that right or unless the court finds that attending the hearing would harm the respondent. Take steps to accommodate the special needs of respondents at court hearings.
- Appoint a certified court interpreter if the respondent does not understand English.
- Refer protective proceedings to mediation. The mediation community should develop training for mediating protective proceedings, including especially the skills and accommodations necessary when mediating with a person of potentially diminished capacity.
- Consider appointing a commissioner to hear probate matters, including guardianship and conservatorship cases, in districts with sufficient caseload.
- With a few exceptions, classify guardianship and conservatorship records as private.
- Require the petitioner to show that alternatives less restrictive than appointing a fiduciary have failed or that they would not be effective. Presume, rather than favor, limited guardianships. Adopt laws, procedures and forms that make limited guardianships a realistic option.
- Require the fiduciary to use the “substituted judgment” standard for decision making on behalf of the respondent except in those limited circumstances in which the “best interest” standard may be used.
- Adopt special procedures for temporary emergency appointments.
- Eliminate “school guardianships.”
- Permit a person to nominate, rather than appoint, a guardian for self, a child or a spouse and to petition to confirm the nomination during one’s lifetime.
- Require the fiduciary to write a management plan and file it with the court.
- Appoint a coordinator to develop a program of volunteer court visitors.
- Regulate the profession of guardian through the Division of Occupational and Professional licensing. Require private guardians and conservators to disclose any criminal convictions that have not been expunged.
- Develop training for lawyers, judges and court staff. Develop outreach and assistance to guardians, conservators, respondents and the public.
- Unify the laws regulating guardians and conservators except where there is sound policy to differentiate them.
Adult guardianship is a matter of state law. Guardianship laws typically are part of a state's laws on probate, trusts, estates and/or fiduciaries. The Uniform Law Commission has promulgated three pieces of model legislation that have had significant influence on the development and evolution of state guardianship law: the Uniform Probate Code, the Uniform Guardianship and Protected Proceedings Act and the Uniform Adult Guardianship and Protected Proceedings Jurisdiction Act.
The Uniform Guardianship, Conservatorship and Other Protective Arrangements Act (2017) (UGCOPAA) is the comprehensive effort to draft a modern guardianship statute in light of more recent reform efforts. It promotes person-centered planning to incorporate an individual’s preferences and values into a guardianship order and requires courts to order the least-restrictive means necessary for the protection of persons who are unable to fully care for themselves.
The Uniform Adult Guardianship and Protected Proceedings Jurisdiction Act (2007) (UAGPPJA) addresses jurisdictional issues: problems that can arise when the person subject to guardianship proceedings has contacts and or property in more than one state. Jurisdictional conflicts can unnecessarily prolong guardianship proceedings, increase costs for the person and the guardian and present greater opportunities for abuse and financial exploitation of the person. The UAGPPJA sets out rules for determining which state has jurisdiction over a particular guardianship proceeding at any given time. As of 2021, the District of Columbia, Puerto Rico, the Virgin Islands and all but four states have implemented the UGPPJA.
The UGCOPAA and the UAGPPJA built upon earlier efforts to improve guardianship statutes.
The Uniform Probate Code (UPC), first approved in 1969 and revised several times since, was one of the earliest efforts to promote uniformity of state family property laws. While most of the UPC addresses the succession of property through intestacy, wills, trusts and other legal mechanisms for the transfer of property, Article 5 pertains to guardianship proceedings. As of 2021, 19 states and the U.S. Virgin Islands have enacted the UPC and most states have adopted or adapted portions of the code. Amendments were adopted in 2019.
UPC Article 5 was revised extensively in 1982. At the same time, the Uniform Law Commission enacted the Uniform Guardianship and Protected Proceedings Act (UGPPA) as a parallel act, free-standing from the UPC, to specifically address guardianship of minors and adults. The UGPPA was revised significantly in 1997 to update procedures for appointing guardians and conservators and strengthen due process protections for persons who are the subject of guardianship proceedings. The following year UPC Article 5 was amended to align with the UGPPA. As of 2021, five states, the District of Columbia and the U.S. Virgin Islands have adopted the UGPPA.
Although less than half the states have enacted UPC Article 5 or the UGPPA, many provisions of state law governing guardianship proceedings are substantially similar across most jurisdictions. Some common elements of guardianship proceedings include:
- Appointment process.
- Differentiating between a guardian for the person's personal affairs and a guardian to protect the person's estate or property (which may be called a conservator in some states).
- Ability to serve as guardian of both the person and the property.
- Requirement of guardian of person or property to file a bond (may be waived for guardian of the person).
- Requirement to file an initial report on the protected person's personal and/or financial status; the required content of the report is substantially similar in Uniform Probate Code jurisdictions.
- Requirement of guardians of the person to file a report of the protected person's general condition, health status and continued need for guardianship protection, typically annually.
- Requirement of a guardian of the estate or property to file a financial accounting, typically annually
- In Uniform Probate Code jurisdictions, the court may appoint a person (visitor) to monitor and report on the condition of the protected person; visitors typically are trained volunteers.
- Authority to remove a guardian that is not performing his or her duties to protect the best interests of the protected person.
The American Bar Association Commission on Law and Aging tracks legislative action and policy reforms across the states (the 2020 Guardianship Legislation Summary can be found here). In addition to reducing jurisdictional conflicts through the adoption of the UAGPPJA, in recent years states have focused on identifying and preventing exploitation of protected persons by guardians and conservators. Legislation in several states has addressed guardianship qualifications and mechanisms to hold guardians accountable. For example, innovations in legislation and court rules in Nebraska require criminal and financial background checks on persons nominated to be guardians and conservators and mandate bond filings by conservators of estates greater than $10,000. Courts also have specified responsibilities for reviewing inventories and accountings and for enforcing compliance with requirements and restrictions placed on guardians and conservators.
Fees for guardians/conservators and attorneys serving the respondent remain highly unregulated in most jurisdictions. Generally, the responsibility of setting and determining appropriate fees is at the discretion of each local jurisdiction and can even vary from judge to judge. In many courts, guardians/conservators receive little to no guidance on what level of fees and services are appropriate. Similarly, information on fees is seldom documented in a database that would allow courts to easily identifier fees that are higher than average.
Third National Guardianship Summit recommendations
Recommendations from the Third National Guardianship Summit (2011) include an entire section on fees (Recommendations #3.1 - #3.8):
Recommendation #3.1: The court should promote sound administrative practices relating to guardianship fees by:
- Encouraging the continuity of judicial experience and expertise on the probate bench and encouraging specialization of probate courts in accordance with the National Probate Court Standards
- Actively monitoring the reasonableness of fiduciary fees
- Creating and maintaining training programs for participants in the guardianship process
- Collecting data regarding fiduciary fees and costs
- Promoting timely review and approval of fees
- Promoting electronic filing.
Recommendation #3.2: Guardians should be entitled to reasonable compensation for their services. The court should consider these factors in determining the reasonableness of guardian fees:
- Powers and responsibilities under the court appointment.
- The necessity of the services.
- The request for compensation in comparison to a previously disclosed basis for fees and the amount authorized in the approved budget, including any legal presumption of reasonableness or necessity.
- The guardian's expertise, training, education, experience, professional standing and skill, including whether an appointment in a particular matter precluded other employment.
- The character of the work to be done, including difficulty, intricacy, importance, time, skill or license required or responsibility undertaken.
- The conditions or circumstances of the work, including emergency matters requiring urgent attention, services provided outside of regular business hours, potential danger (e.g., hazardous materials, contaminated real property or dangerous persons) or other extraordinary conditions.
- The work actually performed, including the time actually expended and the attention and skill-level required for each task, including whether a different person could have better, cheaper or faster rendered the service.
- The result, specifically whether the guardian was successful, what benefits to the person were derived from the efforts and whether probable benefits exceeded costs.
- Whether the guardian timely disclosed that a projected cost was likely to exceed the probable benefit, affording the court an opportunity to modify its order in furtherance of the best interest of the estate.
- The fees customarily paid and time customarily expended, for performing like services in the community, including whether the court has previously approved similar fees in another comparable matter.
- The degree of financial or professional risk and responsibility assumed.
- The fidelity and loyalty displayed by the guardian, including whether the guardian put the best interests of the estate before the economic interest of the guardian to continue the engagement.
- The need for and local availability of specialized knowledge and the need for retaining outside fiduciaries to avoid conflict of interest.
Recommendation #3.4: In the event estate funds are exhausted and the guardian has failed to address the anticipated exhaustion, the court is justified in requiring the guardian to remain serving at least until a succession plan is in place.
Recommendation #3.5: The court and court-appointed counsel should actively and timely monitor fiduciary fees.
Recommendation #3.6: The court should support any rejection or reduction of fees with a statement of explanation.
Recommendation #3.7: The court and all parties should respect the privacy and dignity of the person when disclosing information regarding fees.
Recommendation #3.8: The court should resolve fee disputes through a process that is fair, expeditious and economical, for example, through:
- A court-ordered alternative dispute resolution or mediation process;
- A referral to a regulatory body responsible for reviewing fees; or
- A master or a special judicial resolution process.
Court development of fee schedules
The Superior Court of California, County of San Francisco, Uniform Local Rules of Court (Rule 14) allows fees to be based on the percentage of assets or income. The Court offers the following compensation guideline for management of the estate:
All requests for fees based on an hourly rate must be accompanied by a declaration of the guardian, conservator or trustee with supporting time records. Alternatively, fees may be requested based upon a guideline of one percent (1%) of the fair market value of assets at the end of the accounting period or six percent (6%) of income, in the Court's discretion. (Rule 14.91)
While the use of a flat percentage of the estate or income provides a straightforward guide for fees, those respondents with large estates and/or incomes may end up incurring fees that are disproportionate to the services provided.
Another approach that tries to avert overcharging the estate for services is the establishment of pay scales, based on level of experience. Florida's 13th Judicial Circuit has a Guardian Fee Workgroup that used a statewide fee survey to establish pay scales, based on level of experience. The Workgroup also established a monthly cap for services such as paying bills, clerical work and shopping. Texas's Travis County Probate Court took a similar approach in its Standards for Court Approval of Attorney Fee Applications. The Standards outline court-approved fees for a fiduciary's attorney, attorney ad litems and guardian ad litems, fees when an attorney is also the fiduciary and paralegal/legal assistant charges. The document also provides guidelines for specific types of charges, including travel, legal research, preparation of fee applications, conversations with court and clerk staff, copies and faxes and deliveries. This approach generally requires local participation and surveys to determine the appropriate levels of fees, which will vary from one jurisdiction to another.
In 2011, the Arizona Supreme Court's Committee on Improving Judicial Oversight and Processing of Probate Court Matters issued its Final Report. The Report includes a number of recommendations for cost monitoring and control (see Judge Mroz's PowerPoint presentation), including statewide fee guidelines. In 2012, Arizona adopted statewide fee guidelines that applied to guardians, conservators, personal representatives, GALs and attorneys. These guidelines describe reasonable costs, common fiduciary services (and the time allowed for each) and states that “all annual expenditures, including reasonable professional fees, may not deplete the Estate during the anticipated lifespan of the ward or protected person...” New rules require conservators to file budgets, accountings and sustainability calculations on standardized forms. (See State Task Force Activities.)
Courts that have established set fees and/or services have tended to use one of two formats: (1) fees are based on a percentage of the estate or (2) a range of acceptable fees are provided based on years of professional experience and services performed.