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Key Provisions in Recovering from Fraud and Mismanagement

FidiciaryA fiduciary relationship is a relationship between people where one person, the fiduciary, is charged by the law with maintaining a very high standard of conduct with respect to another person. These relationships typically involve one person, the fiduciary, who is assisting a person in a vulnerable position. Because of the power imbalance, the law imposes specific duties on the fiduciary.

The Arizona probate courts manage the relationships between some fiduciaries and the people or entities that the fiduciary assists. Specifically, the probate court handles cases involving guardianships and conservatorships and estates and trusts.

Arizona law imposes very strict requirements on the conduct of fiduciaries who are charged with preserving the resources under their care. Arizona Revised Statutes Sections 14-1101 through 14-1109, include general provisions applicable to many probate proceedings, including laws that may hold fiduciaries financially responsible for their conduct.

Managing Costs

Part of the fiduciary responsibility is to preserve the assets under the fiduciary’s care and “prudently manage costs.” What this amounts to is that the fiduciary must weigh whether the benefit received by the estate, trust, protected person or ward is outweighed by the expense and impact of pursuing or not pursuing a certain possible course of conduct. If an expense will provide little benefit at a very high cost or risk, the fiduciary may be held responsible for wasting the resources under his or her care.

A fiduciary must always act in the best interest of the ward or protected person under his or her care and must be sure not to engage in excessive or unproductive activities, as these will result in waste.

Attorney and Other Professional Fees

The probate court exists to ensure that vulnerable persons and the estates and trust of deceased persons are properly managed. That’s why there are rules that can hold the fiduciary responsible for wasting or misusing resources. But the Arizona Revised Statutes don’t stop there. They also hold other people responsible for some costs resulting from unreasonable conduct.  Specifically, the probate code includes remedies for unreasonable conduct.

A person whose unnecessary or unreasonable conduct results in professional fees, including attorney fees, being charged to a decedent’s estate or trust can be forced by the court to personally pay those professional fees back to the estate or trust. Those fees can also be charged to that person’s attorney. There are no hard and fast rules about when a court will award fees in this way. It’s up to the court’s discretion. For instance, a beneficiary of an estate who files numerous frivolous motions against a fiduciary, costing the estate significant money, may be held responsible for attorney fees resulting from the fiduciary’s attorney responding to all those motions.

Likewise, in a guardianship or conservatorship, a person can be forced to personally pay for professional fees charged to the ward or protected personal as a result of that person’s unreasonable conduct. Again, these fees also may be charged to the person’s attorney and are entirely within the court’s discretion.

These remedies for professional fees are in addition to other available remedies. So, for example, if a person could also be held responsible for committing fraud against a protected person, the person committing the fraud potentially could be held financially responsible for the fraud in addition to any penalties applied as a result of the fraud.  Similarly, if a person takes advantage of or financially exploits a vulnerable adult, separate penalties may apply.

The purpose behind these laws is to make sure that wards, protected persons and estates and trusts aren’t victimized by unjustified court proceedings or unreasonable demands on a fiduciary or their attorney.

Fraud

Arizona’s probate rules may seem excessive in cases where everyone involved is behaving ethically and within the bounds of the law. But without these rules, vulnerable persons and estates are an easy target for the unscrupulous. Despite the complex of rules applicable to probate cases, dishonest people are often going to seek ways to make an end-run around the probate rules to benefit themselves or hurt others. Arizona law recognizes that attempts to avoid the probate rules can have a very real cost for a trust or estate, ward or protected person.

Thus, a person who commits fraud in order to avoid application of the laws pertaining to probate proceedings can be held financially responsible for their conduct. The unfortunate fact is that, when fraud is perpetuated in a probate proceeding, the person who perpetrated the fraud often doesn’t have the resources to pay for the damage they have caused. If they, for instance, committed fraud, benefiting financially from that fraud, they may no longer have the resources to repay what they’ve stolen. As a result, in some cases, the law allows recovery for fraud against people who benefited from fraudulent activities, even if they didn’t do anything wrong themselves.

For instance, if a person commits fraud against an estate, resulting in a high-dollar bank account being transferred into his or her name, they can, unsurprisingly, be forced to repay what they’ve stolen. But what if they made a gift of the money to someone else and don’t have the ability to repay what they’ve fraudulently taken?

person injured by fraud in a probate proceeding can also seek restitution from a person who benefited from fraud, even if they did not commit the fraud or weren’t even aware of it. This law does not apply to someone who purchased goods from an estate, trust, ward or protected person in an arms-length transaction and without any knowledge or the fraud.

A lawsuit to recover property under this section of the Arizona Revised Statutes must be brought within two years of the fraud being discovered. If the lawsuit is against someone who innocently benefitted from the fraud, the lawsuit must be brought within five years of the fraud being perpetrated.

Conclusion

If you or someone you love has been hurt by the bad conduct of another person involved with you in probate proceedings, you’d be well-advised to seek the counsel of an experienced Scottsdale Arizona probate litigator. Call us to schedule a consultation. There are time-limits on probate proceedings, so don’t delay.

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