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Section 7-202: Fiduciaries

Arizona Revised Statutes AnnotatedCode of Judicial AdministrationEffective: December 29, 2023

Arizona Revised Statutes Annotated
Code of Judicial Administration
Part 7. Administrative Office of the Courts
Chapter 2. Certification and Licensing Programs
Effective: December 29, 2023
AZ ST Code of Jud. Admin., § 7-202
Section 7-202: Fiduciaries
Currentness
A. Definitions. In addition to the definitions provided in the Arizona Code of Judicial Administration (ACJA) § 7-201(A), the following definitions apply:
“Active and direct supervision” means “supervision by a licensed fiduciary or designated principal who provides or exercises routine and regular control over the services of and assumes personal professional oversight and responsibility for the services of other licensed fiduciaries and certified and licensed professionals, trainees, and support staff to whom the licensed fiduciary delegates non-informed consent and non-contract entering authority. Active and direct supervision does not require a principal's constant physical presence if the supervising principal is or can be easily in contact with the fiduciary, trainee, or staff by radio, telephone, or electronic communication.”
“Conservator” means “a person who is appointed by a court to manage the estate of a protected person” as provided in A.R.S. § 14-1201(10).
“Department director” means the individual appointed by the governor of Arizona as provided in A.R.S. § 41-604, to administer the Arizona Department of Veterans' Services.
“Devise” means “when used as a noun, ... a testamentary disposition of real or personal property and, when used as a verb, means to dispose of real or personal property by will” as provided in A.R.S. § 14-1201(14).
“Devisee” means “a person designated in a will to receive a devise” as provided in A.R.S. § 14-1201(15).
“Fiduciary,” consistent with A.R.S. § 14-5651(K)(1) and (J), means:
1. A person who for a fee serves as a guardian or conservator for one or more persons who are unrelated to the fiduciary.
2. A person who for a fee serves as a 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.
3. A person who for a fee serves as a trustee or agent under a power of attorney.
4. A public fiduciary appointed pursuant to § 14-5601.
5. The Arizona Department of Veterans' Services.
“Financial institution” means, as provided in A.R.S. § 14-5651(K)(2):
[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 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.
“Foreign personal representative” means “a personal representative who is appointed by another jurisdiction” as provided in A.R.S. § 14-1201(26).
“Guardian” means “a person who has qualified as a guardian of a minor or incapacitated person pursuant to testamentary or court appointment but excludes a person who is merely a guardian ad litem” as provided in A.R.S. § 14-1201(29).
“Guardian ad litem” includes “a person who is appointed pursuant to [A.R.S.] § 14-1408” as provided in A.R.S. § 14-1201(30).
“Minor ward” means a minor for whom a guardian has been appointed solely because of minority” as provided in A.R.S. § 14-5101(16).
“Personal representative” has the meaning as provided in A.R.S. § 14-1201(48) and “includes an executor, an administrator, a successor personal representative, a special administrator, and persons who perform substantially the same function under the law governing their status.”
“Program coordinator” means “division staff” as provided in ACJA § 7-201(A).
“Public fiduciary” means the individual appointed by the board of supervisors in each county pursuant to A.R.S. § 14-5601 to conduct the affairs of the office of the public fiduciary in the county.
“Protected person” means “a minor or any other person for whom a conservator has been appointed or any other protective order has been made” as provided in A.R.S. § 14-5101(10).
“Related” means a spouse or a person associated by blood or marriage within the fifth degree of consanguinity or affinity.
“Within the fifth degree of consanguinity or affinity” means any person by blood, adoption, or marriage as follows: a spouse or a surviving spouse, child, grandchild, great-grandchild, parent, grandparent, great-grandparent, great-great grandparent, sibling, nephew or niece, grandnephew or grandniece, great-grandnephew or great-grand niece, uncle or aunt, great uncle or great aunt, great-grand uncle or great-grand aunt, first cousin, or first cousin once removed.
“Trainee” means a person who would qualify for licensure as a fiduciary but for the lack of required experience and who is seeking to gain the required experience to qualify as a licensed fiduciary by working under the active and direct supervision of a designated principal or licensed fiduciary to perform authorized services as provided in this section.
“Ward” means “a person for whom a guardian has been appointed” as provided in A.R.S. § 14-5101(16).
B. Applicability
1. This section establishes the fiduciary licensure program administered by the supreme court pursuant to A.R.S. § 14-5651(A). This section is read in conjunction with ACJA § 7-201: General Requirements. In the event of a conflict between this section and ACJA § 7-201, the provisions of this section govern.
2. This section applies to the licensure of fiduciaries, except financial institutions. Pursuant to A.R.S. § 14-5651(A), “the superior court shall not appoint a fiduciary unless that person is licensed by the supreme court.” To be eligible for court appointment as a guardian, conservator, or personal representative, all individuals and entities, except financial institutions, must hold a valid license under this section and comply with the requirements of A.R.S. § 14-5651.
3. Consistent with A.R.S. § 14-5651(J), this section also applies to any supreme court licensed fiduciary who is acting as a guardian, conservator, personal representative, trustee, or agent under a power of attorney, regardless of whether that person is acting pursuant to court appointment.
4. As provided in A.R.S. §§ 14-5501(F), 14-10820, 36-3221(E), and 36-3223(D), a person whose fiduciary license has been suspended or revoked pursuant to A.R.S. § 14-5651 may not serve:
a. As an agent under a power of attorney in any capacity unless the person is related to the principal by blood, adoption, or marriage; and
b. As a trustee in any capacity unless the person is related to the beneficiary by blood, adoption, or marriage.
The prohibition against serving as an agent under a power of attorney or as a trustee does not apply if the person's license has been reinstated and is in good standing.
C. Purpose. This section is intended to result in the effective administration of the fiduciary program and in licensure of fiduciaries and fiduciary entities for performance of responsibilities in a professional and competent manner, and for the protection of the public in accordance with all applicable statutes, ACJA sections, and court rules.
D. Administration.
1. Role and Responsibilities of the Supreme Court.
a. In addition to the supreme court's roles and responsibilities for administering the fiduciary program and adopting rules and establishing and collecting the fees, costs, and fines for implementation and enforcement of the program as provided in ACJA § 7-201(D), ACJA § 7-201(D) and A.R.S. § 14-5651(A) provide that the rules adopted must, at minimum, 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) A requirement that on appointment a fiduciary who is serving as a guardian or conservator must provide written information to the ward or protected person and all persons entitled to notice pursuant to A.R.S. § 14-5309 or 14-5405, using language prescribed by the supreme court that includes reference to the fiduciary code of conduct, that the fiduciary is licensed by the supreme court and subject to regulation by the supreme court.
(4) Minimum qualifications.
(5) Certification and disciplinary processes.
(6) Biennial renewal of licensure.
b. As provided in A.R.S. §§ 35-146 and 35-147, the supreme court must deposit the fees, costs, and fines collected related to fiduciaries in the fund established by A.R.S. § 8-135.
2. Role and Responsibilities of the Director. The director's responsibilities are as provided in ACJA § 7-201(D).
3. Role and Responsibilities of the Deputy Director. The responsibilities of the deputy director are as provided in ACJA § 7-201(D).
4. Responsibilities of Division Staff. In addition to the responsibilities provided in ACJA § 7-201(D), division staff must:
a. Provide a training session on the role and responsibilities of the licensed professional fiduciary pursuant to subsection (E)(1)(d).
b. Administer the examination required pursuant to this section and ACJA § 7-201(E)(1)(c), by offering the examination a minimum of four times per calendar year and no fewer than once every three months.
c. Pursuant to A.R.S. § 14-5651(C)(6), the program coordinator serves “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.”
5. Role and Responsibilities of the Fiduciary Board.
a. The fiduciary board is established pursuant to ACJA § 7-201(D)(5) and has the duties stated in that section.
b. The fiduciary board has eleven members consisting of:
(1) Three licensed fiduciaries who have worked as a licensed fiduciary in private practice for at least five years;
(2) Two licensed fiduciaries who have worked as a licensed fiduciary in a public office for at least five years;
(3) One active or retired judge of the superior court or the court of appeals;
(4) One court administrator or clerk of the superior court;
(5) One attorney whose major emphasis is in the area of probate, trust, elder, mental health, or disability law;
(6) Two public members; and
(7) An additional member appointed by the chief justice.
E. Initial Licensure.
1. Eligibility. An applicant is eligible for licensure as an individual or as a business entity as follows:
a. Individual Licensure.
(1) Pursuant to A.R.S. § 14-5651(C), an applicant for licensure must:
(a) Be at least twenty-one years of age.
(b) Be a citizen of this country.
(c) Not have been convicted of a felony.
(d) Attest that the applicant has not been found civilly liable in an action that involved fraud, misrepresentation, material omission, misappropriation, theft, or conversion.
(e) Consent in the application form to the jurisdiction of the courts of this state for all actions arising under the laws governing fiduciaries and public fiduciaries and appoint the fiduciary program coordinator as their agent for accepting service of process in any action relating to their duties as a fiduciary.
(2) In addition to the eligibility requirements of A.R.S. § 14-5651(C), the applicant must possess one of the following:
(a) A high school diploma or a general equivalency diploma evidencing the passing of the general education development test plus a minimum of three years of full-time equivalent work experience within the previous ten years specifically related to one or a combination of the fiduciary relationships of guardianship, conservatorship, or personal representative, or trusts, in which the applicant, in a non-familial relationship, worked and performed services in the administration of a trust, decedent's estate, guardianship, or conservatorship in one or a combination of the following circumstances:
(i) Under the supervision of a licensed fiduciary;
(ii) Under the supervision of a bank trust or trust company officer; or
(iii) Under the supervision of a licensed attorney whose major emphasis is in the area of probate, trust, elder, mental health, or disability law.
(b) A bachelor of arts, bachelor of science, or a master's degree from an accredited college or university plus a minimum of one year of full-time equivalent work experience within the previous five years specifically related to one or a combination of the fiduciary relationships of guardianship, conservatorship, personal representative, or trusts, in which the applicant, in a non-familial relationship, worked and performed services in the administration of a trust, decedent's estate, guardianship, or conservatorship in one or a combination of the following circumstances:
(i) Under the supervision of a licensed fiduciary;
(ii) Under the supervision of a bank trust or trust company officer; or
(iii) Under the supervision of a licensed attorney whose major emphasis is in the area of probate, trust, elder, mental health, or disability law.
(c) A high school diploma or a general equivalency diploma evidencing the passing of the general education development test; a certificate of completion from a paralegal or legal assistant program that is not approved by the American Bar Association but is institutionally accredited and requires successful completion of a minimum of 24 semester units, or the equivalent, in fiduciary specialization courses; plus a minimum of two years of work experience within the previous ten years specifically related to one or a combination of the fiduciary relationships of guardianship, conservatorship, personal representative, or trusts, in which the applicant, in a non-familial relationship, worked or performed services in the administration of a trust, decedent's estate, guardianship, or conservatorship in one or a combination of the following circumstances:
(i) Under the supervision of a licensed fiduciary;
(ii) Under the supervision of a bank trust or trust company officer; or
(iii) Under the supervision of a licensed attorney whose major emphasis is in the area of probate, trust, elder, mental health, or disability law.
(d) A high school diploma or a general equivalency diploma evidencing the passing of the general education development test; a certificate of completion from an accredited educational program designed specifically to qualify a person for licensure as a fiduciary under this section; plus a minimum of two years of work experience within the previous ten years specifically related to one or a combination of the fiduciary relationships of guardianship, conservatorship, personal representative, or trusts, in which the applicant, in a non-familial relationship, worked and performed services in the administration of a trust, decedent's estate, guardianship, or conservatorship in one or a combination of the following circumstances:
(i) Under the supervision of a licensed fiduciary;
(ii) Under the supervision of a bank trust or trust company officer; or
(iii) Under the supervision of a licensed attorney whose major emphasis is in the area of probate, trust, elder, mental health, or disability law.
(e) A high school diploma or a general equivalency diploma evidencing the passing of the general education development test and a certificate of completion from a paralegal or fiduciary program approved by the American Bar Association. In addition, the applicant must have a minimum of two years of work experience within the previous ten years specifically related to one or a combination of the fiduciary relationships of guardianship, conservatorship, or personal representative, as defined in subsection (A), or trusts, where the applicant, in a non-familial relationship, worked and performed services in the administration of a trust, decedent's estate, guardianship or conservatorship in one or a combination of the following circumstances:
(i) Under the supervision of a licensed fiduciary;
(ii) Under the supervision of a bank trust or trust company officer; or
(iii) Under the supervision of a licensed attorney whose major emphasis is in the area of probate, trust, elder, mental health, or disability law.
(f) A juris doctorate degree from a law school accredited by the American Bar Association and currently admitted to the practice of law, active and in good standing in the state in which the applicant was admitted.
(g) A high school diploma or a general equivalency diploma evidencing the passing of the general education development test and appointment as a foreign fiduciary where the fiduciary served pursuant to a court order. In addition, the applicant must have a minimum of three years of work experience specifically related to one or a combination of the fiduciary relationships of guardianship, conservatorship, or personal representative, as defined in subsection (A), or trusts, where the applicant, in a non-familial relationship, worked and performed services in the administration of a trust, decedent's estate, guardianship, or conservatorship.
(h) A high school diploma or a general equivalency diploma evidencing the passing of the general education development test and a registered master guardian certification in good standing with the National Guardianship Association.
(3) Upon review, and for good cause, the board may waive or reduce the requirement that an applicant's work experience be completed within the ten or five year period before application, but the board may not grant any exception to the number of years of work experience required.
(4) Examination.
(a). The applicant must pass a written examination testing the applicant's knowledge and minimum competencies to serve as a fiduciary.
(b). On passing the examination, the applicant must attend and complete a session on the role and responsibilities of the licensed professional fiduciary as provided by division staff.
(c). The applicant has 90 days from the date of passing the examination to complete the licensing process. An applicant who does not complete the process within 90 days is considered a new applicant and must submit a new application and pay all initial licensure, examination, and training fees.
(5) Trainee Work Experience. An individual may work under the supervision of a licensed fiduciary, bank trust or trust company officer, or licensed attorney whose major emphasis is in the area of probate, trust, elder, mental health, or disability law to gain the required work experience must:
(a) Complete the trainee registration form and submit it to the division.
(b) Pay the required registration fee, which covers the cost of trainee registration and one administration of the examination but does not include the required fingerprint fee.
(c) Submit a full set of fingerprints as required by A.R.S. § 14-5651(B) and this section.
(d) Satisfy the continuing education requirement of subsection (L)(b)(2).
(e) Submit an application for individual licensure upon satisfying the eligibility requirements of subsection (E)(1)(a).
b. Licensure as a Business Entity.
(1) Designation of Principal. The initial application of a corporation, limited liability company, or partnership; the Arizona Department of Veterans' Services; or Office of the Public Fiduciary must:
(a) Designate a principal who:
(i) Holds a valid, active license as a fiduciary that has not been previously revoked.
(ii) Complies with the licensure renewal requirements.
(b) Submit a completed application form to the division with the applicable fees.
(i) The initial application must include a list of all licensed fiduciaries and trainees acting for or on behalf of the business entity, Arizona Department of Veterans' Services, or Office of the Public Fiduciary with the initial application.
(ii) The initial application of a business entity must include articles of incorporation and letters of good standing from the Arizona Corporation Commission or the Secretary of State, as applicable.
(2) Replacement of Principal. If a business entity, the Arizona Department of Veterans' Services; or county board of supervisors, in the case of the Office of the Public Fiduciary, receives notice that the designated principal is no longer willing or able to serve as the designated principal, it must:
(a) Withing1 14 days, notify division staff of the name of the new designated principal.
(b) Within 30 days, file an executed principal form designating the new principal with division staff.
(c) Ensure the new designated principal meets the requirements of subsection (E)(1)(b)(1).
(d) A designated principal is not unable to serve due to short-term vacations or illnesses.
(3) Responsibilities of Designated Principal.
(1) The designated principal must:
(a) Provide active and direct supervision of all other licensed fiduciaries, trainees, and support staff who work with wards, protected persons, or decedent estates and who work for the corporation, limited liability company, or partnership, Department of Veterans' Services, or Office of the Public Fiduciary;
(b) Adopt policies and procedures giving reasonable assurance that all licensed fiduciaries and trainees conform to the applicable rules, statutes and sections of the ACJA and that non-licensed staff conduct themselves in accordance with the applicable rules, statutes, and sections of the ACJA.
(c) In compliance with subsections F and J, delegate and assume personal professional responsibility for ensuring the tasks performed by the licensed fiduciaries, professionals, support staff, and others who provide services for wards, protected persons, or decedent estates are within the scope of their training and experience and have been delegated by the principal.
(d) Agree that at least one licensed fiduciary will assume the primary responsibility for each court appointment as a guardian, conservator or personal representative.
(e) File with the division staff, by June 30 each year, a list of all licensed fiduciaries and trainees acting for or on behalf of the business entity, Department of Veterans' Services, or Office of the Public Fiduciary.
(2) The designated principal may represent the business entity or public fiduciary office in any proceeding under this section or ACJA § 7-201. The director of the Department of Veterans' Services or designated principal may represent the department in any proceeding under this section or ACJA § 7-201.
2. Procedures for Initial Licensure. In addition to satisfying the eligibility requirements of subsection (E)(1), an applicant must comply with the following:
a. Fingerprints. The applicant must submit with the application, a full set of fingerprints, with the fee established by law, for the purpose of obtaining a state and federal criminal records check as required by A.R.S. § 14-5651(B). An application submitted without a fingerprint card, is deficient.
b. Bond. For initial licensure the applicant must file with the application a cash or surety bond for the purposes described in A.R.S. § 14-5651(D) and subsection (E)(4)(b). This bond is separate from the requirements of A.R.S. §§ 14-5411(A) and 14-3603(A). Upon licensure, the licensee must maintain the cash or surety bond as long as the licensure is in place. Upon expiration or surrender of the license, the licensee may apply in writing to division staff for return of any cash bond not forfeited. Division staff will return any cash bond not forfeited within 120 days.
(1) A bond may be either a surety or cash bond as follows:
(a) A surety bond must be issued by an insurer holding a certificate of authority issued by the director of the Arizona Department of Insurance and authorized to do business in Arizona. The bond must be executed on an approved bond form written in favor of the state of Arizona and the supreme court and must contain:
(i) A Bond Number;
(ii) The fiduciary applicant's name;
(iii) The name of the insurance company;
(iv) Have a total aggregate liability of $10,000;
(v) Have a provision that the insurer will not cancel the bond without at least 30 days prior written notice to the supreme court by the insurer; and
(vi) Be signed by the insurer and fiduciary applicant.
(2) A cash bond must be in the amount of $10,000 and deposited with the state treasurer in a special non-interest-bearing account.
(3) If the applicant is found by the board to have violated any section adopted pursuant to A.R.S. § 14-5651, the board may cause the forfeiture of the cash or surety bond, as applicable, to the supreme court. If the bond is forfeited, division staff must deposit the funds in the confidential intermediary and fiduciary fund established pursuant to A.R.S. § 8-135.
c. Bond Exemption. State and local governmental agencies and agency staff, including fiduciaries in the office of the public fiduciary and the Arizona Department of Veterans' Services, are not required to post the surety or cash bond.
3. Exemptions from Licensure.
a. Licensure is not required of:
(1) Any person or business entity who serves, if court appointed, as a guardian, conservator or personal representative for one or more persons for no fees or compensation monetary or otherwise;
(2) Any person who serves, if court appointed, as a personal representative, guardian or conservator if they are related to the decedent or incapacitated or protected person;
(3) Any person who serves, if court appointed, as a personal representative who is nominated in a will or nominated by a power conferred in a will;
(4) Any person who serves, if court appointed, as a personal representative who is a devisee in the will;
(5) Any person appointed to serve as a guardian ad litem;
(6) Any person serving as a foreign personal representative in an ancillary probate administration pursuant to A.R.S. § 14-4205;
(7) Any person serving as a foreign conservator pursuant to A.R.S. §§ 14-5431 and 14-5432; or
(8) A financial institution as provided in A.R.S. § 14-5651(G).
(9) As ordered by the supreme court for good cause as provided in A.R.S. § 14-5651(G).
(10) Emergency Exemption. Any person or business entity seeking court appointment as a conservator, guardian, or personal representative may apply for an emergency exemption from licensure by filing an application for exemption, on the prescribed form, with the clerk of the superior court in the county where the appointment is requested. For good cause shown, the presiding judge of the superior court or designated judicial officer:
(a) May grant the exemption if the presiding judge or designated judicial officer finds the applicant possesses the experience, education, and skills necessary to meet the needs of the ward, protected person, or decedent's estate. In making this determination, the presiding judge or designated judicial officer may consider:
(i) The nature of the relationship with the ward, protected person, or deceased person.
(ii) The type of decisions the fiduciary may make.
(iii) The amount of assets the fiduciary must manage.
(iv) Any limitations or conditions on the appointment.
(v) The estimated cost of the fiduciary and associated professional fees the fiduciary must charge.
(vi) That the applicant is not acting as a fiduciary in any other case unless related to the ward or protected person by blood or marriage.
(vii) That the applicant has known the ward, protected person, or deceased person for at least two years.
(viii) That no prejudice or harm is likely to occur if the exemption is granted.
(ix) That there is an emergency need for the temporary appointment;
(x) That no relative is willing and able to serve.
(xi) That no licensed fiduciary is willing and able to serve.
(b) The presiding judge or designated judicial officer may hold a hearing or request additional information in order to make any required finding.
(c) If the presiding judge or designated judicial officer enters an order granting an exemption the following restrictions apply:
(i) Temporary appointment is effective for a period of up to 90 days. The presiding judge may grant one extension for a period of up to 90 days. The purpose of the temporary appointment is to allow the individual to seek and obtain licensure during this temporary appointment;
(ii) The appointee must apply for fiduciary licensure with the supreme court; and
(iii) The appointee must not receive any compensation in any form while the appointee is serving in the capacity of an emergency exempted fiduciary, except for reimbursement for reasonable expenses, subject to court approval.
(d) Within fifteen days of granting the exemption from licensure, the presiding judge or designated judicial officer must forward to division staff a copy of the application for exemption, the petition and order granting the emergency appointment of guardian or conservator and the minute entry.
4. Decision Regarding Licensure. In addition to the reasons for denial of licensure provided in ACJA § 7-201(E), the board:
a. May deny licensure:
(1) If the applicant or an officer, director, partner, member, trustee, or manager of the applicant has been removed as a court appointed guardian, conservator, or personal representative for cause;
(2) If an officer, director, partner, member, trustee, or manager of the applicant has a record of conviction by final judgment of a felony.
b. Must deny licensure if the applicant has a record of conviction by final judgment of a felony as provided in A.R.S. § 14-5651(C)(3).
F. Role and Responsibilities of Fiduciaries. In addition to the requirements of ACJA § 7-201(F), the following requirements apply:
1. Code of Conduct. Each licensed fiduciary must adhere to the code of conduct in subsection (J), required by A.R.S. § 14-5651(A)(1).
2. Status of the Fiduciary. The license issued by the board to the fiduciary must designate the status of the fiduciary as associated with a public fiduciary, associated with the Arizona Department of Veterans' Services, associated with a business entity, or acting independently.
a. The principal of a business entity, the office of the public fiduciary, or the Arizona Department of Veterans' Services must file with the division, by no later than June 30 of each year, a list of all licensed fiduciaries associated with the business entity, the public fiduciary, or the Arizona Department of Veterans' Services.
b. If the status of fiduciary changes from being associated with a business entity, a public fiduciary office, or the Arizona Department of Veterans' Services, the fiduciary must, within 30 days of the change, notify the division. If the change results in an individual licensee losing an exemption under subsection (E)(2)(c), the individual licensee must satisfy the bond requirement of subsection (E)(2)(b) before acting as a fiduciary.
c. A business entity, public fiduciary office, or the Arizona Department of Veterans' Services must notify division staff within 30 days of a licensed fiduciary leaving the employment of the business entity, public fiduciary office, or the Arizona Department of Veterans' Services.
3. License Number. A fiduciary must include the fiduciary's personal license number on any document filed with the superior court and the license number of any applicable business entity.
4. Notice. On appointment, a fiduciary who is serving as a guardian or conservator must provide the following written information to the ward or protected person and all persons entitled to notice pursuant to A.R.S. §§ 14-5309 or 14-5405:
(Name of Fiduciary and/or Fiduciary Entity) holds an active fiduciary license No. XXXX, issued by the Arizona Supreme Court, and is subject to regulation by the Arizona Supreme Court, Administrative Office of the Courts. The regulations governing licensed fiduciaries and fiduciary entities are located in the Arizona Code of Judicial Administration (ACJA) § 7-201: General Requirements and § 7-202: Fiduciaries. These administrative provisions adopted by the Arizona Supreme Court include a Code of Conduct, in ACJA § 7-202(J) that all licensed fiduciaries are required to follow. Additional information about licensed fiduciaries and their requirements may be obtained from the Administrative Office of the Courts at:
http://www.azcourts.gov
Email to [email protected]
Phone: 602-452-3378
5. A fiduciary must report and provide copies of all pertinent documents to the division within 30 days of any of the following:
a. Any bankruptcy, tax lien, final foreclosure, or civil judgment.
b. Any court removal for cause, except that a fiduciary is not required to report removal in which a party petitioned the court to substitute the fiduciary under A.R.S. §§ 14-5307 or 14-5415 and the court did not find that the fiduciary acted inappropriately.
c. Any court order or sanction issued against the fiduciary on a finding of contempt or breach of fiduciary duty including civil arrest warrants, involuntary termination of appointment, fiduciary arrest warrants, and any other court order or sanction issued under any court rule or Title 14, Arizona Revised Statutes, as a remedy for non-compliance by the fiduciary.
d. Any court order that the fiduciary engaged in vexatious conduct under Rule 10(G), Arizona Rules of Probate Procedure.
e. Any court order issued under A.R.S. § 14-1105, in which the fiduciary is ordered to reimburse a decedent's estate or trust or a ward or protected person for professional fees or expenses incurred as a result of unreasonable conduct.
f. Any felony conviction.
6. Trainees. A trainee must:
a. Be under the active and direct supervision of a licensed fiduciary or designated principal.
b. Comply with the continuing education requirements outlined in subsection (L)(b)(2).
c. Adhere to the code of conduct in subsection (J).
d. A trainee must not provide informed verbal or written consent or enter into contractual agreements on behalf of a ward, licensed fiduciary, or designated principal.
7. Eligibility for Licensure. A trainee may apply for fiduciary licensure after serving one year of full time equivalent service as a trainee if the trainee otherwise qualifies for licensure.
8. Supervision of Trainees. A licensed fiduciary or designated principal may supervise a trainee under the following conditions:
a. The supervising fiduciary must maintain the primary responsibility for the client or estate and must not delegate this duty to any trainee.
b. The supervising fiduciary must:
(1) Assume personal professional responsibility for the trainee's guidance in any work undertaken and for providing active and direct supervision, as necessary, over the quality of the trainee's work;
(2) Assist the trainee in activities to the extent the fiduciary considers it necessary;
(3) Ensure that the trainee is familiar with and adheres to the provisions of this section, including the code of conduct in subsection (J), and ACJA § 7-201; and
(4) Provide the supervising fiduciary's name and license number on any documents filed in a court or tribunal prepared by the trainee under the fiduciary's supervision.
c. The trainee may perform authorized services, as set forth in statute, court orders, this section, and ACJA § 7-201, only under the supervision of the licensed fiduciary or designated principal. Neither the trainee nor the supervising fiduciary may represent that the trainee is a licensed fiduciary. The trainee may prepare a document for filing with the court, as authorized by subsection (J)(1)(d), under the supervision of the licensed fiduciary or designated principal. The trainee is not authorized to file and must not file any document with the court.
9. Support Staff and Other Professionals. A licensed fiduciary or designated principal may, under the licensed fiduciary or designated principal's active and direct supervision, utilize support staff and other professionals to perform office functions and client services. Support staff and other professionals may be used to gather and provide necessary information to the licensed fiduciary regarding a client and to make recommendations, based on their knowledge and expertise, to the licensed fiduciary. The licensed fiduciary or designated principal may not delegate informed consent or contractual agreement decision-making authority to trainees, non-licensed staff, or other professionals.
a. “Support staff” means individuals who:
(1) Are employed by the licensed fiduciary or designated principal and perform clerical, bookkeeping, or other administrative and support duties;
(2) Do not engage in any acts requiring licensure under ACJA §§ 7-201, 7-202 or Title 14, Chapter 5, Article 7, Arizona Revised Statutes; and
(3) Are not employed as a condition of performing or with the design that they perform duties otherwise requiring licensure.
b. “Other Professionals” means individuals who are licensed in another field or discipline and who the licensed fiduciary or designated principal employs or contracts with on behalf of the ward or decedent's estate and who perform those services and acts authorized under their professional license. “Other professionals” include, but are not limited to, registered nurses, licensed nurse practitioners, certified public accountants, certified paralegals, licensed attorneys, and certified legal document preparers.
10. Reporting of Possible Violations. A fiduciary must notify the division if the fiduciary has knowledge that another licensed fiduciary has committed misconduct raising a substantial question as to the fiduciary's honesty, trustworthiness, or qualifications as a licensed fiduciary by promptly filing a complaint under ACJA § 7-201(H).
G. Renewal of Licensure. In addition to the requirements of ACJA § 7-201(G), the following requirements apply:
1. Expiration Date. All licenses expire at midnight on May 31st each even-numbered year.
2. A renewal application is timely if submitted during the month of April of each even-numbered year. A renewal application submitted during the month of May or later in each even-numbered year will be assessed a late renewal fee under subsection (K)(3)(d).
3. Continuing Education. By no later than March 31 of each even-numbered year, all licensed fiduciaries and trainees must complete the continuing education hours in compliance with subsection (L).
4. All business entities seeking renewal of licensure must include a letter of good standing from the Arizona Corporation Commission or Arizona Secretary of State, as applicable, with the application for renewal.
5. Decision Regarding Renewal. In addition to the reasons for denying renewal of licensure provided in ACJA § 7-201(G), the board:
a. May deny renewal of licensure:
(1) If the applicant or an officer, director, partner, member, trustee, or manager of the applicant was removed as a court appointed guardian, conservator, or personal representative for cause.
(2) The court issued an order or sanction against the fiduciary on a finding of contempt or breach of fiduciary duty regarding the administration of a guardianship, conservatorship, or estate including, but not limited to, the issuance of civil arrests warrants, fiduciary arrest warrants, or a court finding that the fiduciary engaged in vexatious conduct.
(3) If an officer, director, partner, member, trustee, or manager of the applicant has a record of conviction by final judgment of a felony.
b. Must deny renewal of licensure if the applicant has a record of conviction by final judgment of a felony as provided in A.R.S. § 14-5651(C)(3).
H. Complaints, Investigation, Disciplinary Proceedings, and Licensure and Disciplinary Hearings. In addition to the provisions of ACJA § 7-201(H), the following apply to licensees and trainees:
1. Reporting of Complaints. Under A.R.S. § 14-5651, 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.
2. Possible Actions. Upon completion of an investigation concerning alleged acts of misconduct or violations by a licensee or trainee, which may or may not involve a hearing, the board may, in addition to any other actions specified in ACJA § 7-201(H):
a. Require the licensee to forfeit the surety or cash bond to the extent necessary to compensate the court for the investigation and hearing process if applicable.
b. Determine and impose a civil penalty under A.R.S. § 14-5651(D). The civil penalty may not exceed $500 for each failure or violation and may not exceed a total of $15,000. The licensed fiduciary must pay the civil penalty to the supreme court for remission to the state treasurer for deposit in the general fund.
c. Deny initial licensure to a trainee if the board finds the trainee's conduct demonstrates a lack of competence, has been the source of injury or loss, or poses a danger to the public.
3. Judicial Review. As provided in A.R.S. § 14-5651(H), no fiduciary or applicant for a license has the right to a direct appeal to the supreme court.
I. Policies and Procedures for Board Members. Board member policies and procedures are as provided in ACJA § 7-201(I).
J. Code of Conduct. The following code of conduct establishes minimum standards of performance for licensed fiduciaries, is adopted by the supreme court under A.R.S. § 14-5651(A)(1), and must be followed by all licensed fiduciaries in the state of Arizona. A violation of the code of conduct is unprofessional conduct and is grounds for discipline under ACJA § 7-201(H)(6)(k).
1. Duty to the Court.
a. The fiduciary must perform all duties and discharge all obligations in accordance with current Arizona law, federal law, administrative rules, court orders, court rules, administrative orders, and the Arizona Code of Judicial Administration.
b. The fiduciary must not act outside of the authority granted by the court, must seek direction from the court as necessary, and must seek court authorization for actions that are subject to court approval. The fiduciary must clarify with the court any questions about the meaning of a court's order or directions before taking action based on the order or directions. If the fiduciary is aware of a court order that may conflict with this ACJA section, the fiduciary must bring the possible conflict to the attention of the court and seek the court's direction.
c. The fiduciary must:
(1) Inform the court, pursuant to the Arizona Rules of Probate Procedure, of a permanent change in the location, or upon the death, of a ward or protected person.
(2) Provide or ensure that reports, notices, financial accounts, and other documents are timely, complete, accurate, understandable, in a form acceptable to the court, consistent with the requirements specified in Arizona law, court rule, and the applicable sections of the Arizona Code of Judicial Administration.
(3) Not knowingly file any document with the court or present testimony to the court that is misleading, inaccurate, false, or that contains misstatements, misrepresentations, or omissions of material facts.
(4) Not knowingly interfere with the transmission of a request to the court:
(a) From the ward for an order that the ward is no longer incapacitated;
(b) From the protected person for an order that the protected person is no longer in need of protection; or
(c) From the ward or protected person for substitution of the fiduciary.
d. Authorized Services. Pursuant to Rule 31(d)(30), Arizona Rules of the Supreme Court, unless otherwise ordered by the court, a licensed fiduciary or a licensed fiduciary on behalf of a licensed fiduciary entity:
(1) Is authorized to prepare and file with the court the following documents, without the supervision of an attorney:
(a) Court investigation reports, if the fiduciary has been appointed as a court investigator pursuant to A.R.S. §§ 14-5303, 14-5407 or 36-540;
(b) Probate information forms pursuant to Rule 10, Arizona Rules of Probate Procedure;
(c) Amendments to probate information forms, pursuant to Rule 10(C), Arizona Rules of Probate Procedure, including notices of change of address and notice of death or the ward or protected person;
(d) Notice of the basis of compensation pursuant to A.R.S. § 14-5109 and Rule 33, Arizona Rules of Probate Procedure;
(e) Guardian reports pursuant to A.R.S. § 14-5315; Rule 30, Arizona Rules of Probate Procedure; and ACJA § 3-302;
(f) Inventory of conservatorship pursuant to A.R.S. § 14-5418; Rules 30 and 31, Arizona Rules Probate Procedure; and ACJA § 3-302;
(g) The protected person's consumer credit report that is filed with the inventory, pursuant to A.R.S. § 14-5418;
(h) Conservatorship estate budget pursuant to Rule 30.3, Arizona Rules of Probate Procedure, and ACJA § 3-302;
(i) Petition for Approval of Conservator Account, the required notices, and the conservator account pursuant to A.R.S. § 14-5419, Rule 30.3, Arizona Rules of Probate Procedure; and ACJA § 3-302. This authority does not include the preparation and filing of documents in contested probate proceedings pursuant to Rule 27, Arizona Rules of Probate Procedure, when an objection is made to the Petition for Approval of Conservator Account;
(j) Proof of restricted account, pursuant to Rule 22(C)(3), Arizona Rules of Probate Procedure;
(k) Notices to creditors;
(l) Status reports;
(m) Reports to the court of abuse, neglect, or exploitation of a vulnerable adult pursuant to A.R.S. § 46-454, et seq;
(n) A copy of the recorded letters the conservator is required to file with the court pursuant to Rule 26(E), Arizona Rules of Probate Procedure;
(o) Proofs of publication, notice, or mailings associated with the above filings; and
(p) Fiduciary bond.
(2) May provide general legal information to the ward, protected person and persons entitled to notice, pertaining to legal rights, procedures, or options available to the ward or protected person in a legal matter.
(3) Must not provide any legal advice, opinion, or recommendation about possible legal rights, remedies, defenses, options, or strategies.
(4) May attend court hearings, including the initial appointment hearing for appointment of guardian, or any appearance hearing at which the fiduciary may be requested to provide testimony or the appearance of the fiduciary is necessary to further the client's best interests.
(5) Must not represent that the fiduciary is authorized to practice law in this state, provide legal services to another by representing another in a judicial, quasi-judicial, or administrative proceeding, or any other formal dispute resolution process, except as authorized by Rule 31, Arizona Rules of the Supreme Court. Notwithstanding these prohibition, a fiduciary may attend court with a ward or protected person and may provide general legal information pursuant to subsection (J)(1)(d)(2).
(6) Must abide by any order entered pursuant to Rule 31, Arizona Rules of the Supreme Court and Rule 35, Arizona Rules of Probate Procedure, in which the court orders that a licensed fiduciary must obtain the court's permission to file future pleadings and other papers in a case or cases if the order finds the fiduciary engaged in vexatious conduct in connection with a probate case.
(7) May not perform functions listed in (J)(1)(d) if the court has suspended the fiduciary's authority to act pursuant to Rule 31(d)(3) which provides: “A person licensed as a fiduciary pursuant to A.R.S. § 14-5651 may perform services in compliance with Arizona Code of Judicial Administration, Part 7, Chapter 2, Section 7-202. Notwithstanding the foregoing provision, the court may suspend the fiduciary's authority to act without an attorney whenever it determines that lay representation is interfering with the orderly progress of the proceedings or imposing undue burdens on other parties.”
(8) Must inform the ward, protected person, and persons entitled to receive notice that the fiduciary is not a lawyer, is not employed by a lawyer, and cannot give legal advice, and that communications with a fiduciary are not privileged. A fiduciary must not use the designations “lawyer,” “attorney at law,” “counselor at law,” “law office,” “JD,” “Esq.,” or other equivalent words, the use of which is reasonably likely to induce others to believe the fiduciary is authorized to engage in the practice of law in the State of Arizona, unless the fiduciary has been admitted to the practice of law in Arizona and is an active member of the State Bar of Arizona.
(9) May only prepare powers of attorney or other legal documents if also certified as a legal document preparer pursuant to ACJA § 7-208, except as provided in subsection (J)(d)(1) or as otherwise ordered by the court. This provision does not apply to the Arizona Department of Veteran's Services pursuant to A.R.S. § 41-603(A).
2. Relationship with the Ward or Protected Person. The fiduciary must exhibit the highest degree of trust, loyalty, and fidelity in relation to the ward, protected person, or estate.
a. The fiduciary must manage and protect the personal and monetary interests of the ward or protected person and foster growth, independence, and self-reliance to the maximum degree.
b. The fiduciary must:
(1) Avoid self-dealing, conflict of interest, impropriety, or the appearance of a conflict of interest or impropriety. Self-dealing, a conflict of interest, or impropriety arises where the fiduciary has some personal or agency interest other individuals may perceive as self-serving or adverse to the position or best interest of the ward, protected person, or decedent. A conflict of interest may also arise if the fiduciary has dual or multiple relationships with a ward that conflict with each other or has a conflict between or among the best interests of two or more wards.
(2) Maintain independence from all service providers to enable the fiduciary to coordinate services, challenge inappropriate or poorly delivered services, and act in the best interests of the ward or protected person.
(3) Upon becoming aware of a conflict of interest, immediately disclose to the court the existence and nature of the conflict.
(4) If the fiduciary is acting as a trustee for a trust that is not supervised by the court, the fiduciary must promptly provide written disclosure of any actual or perceived conflict of interest in administering the trust to all qualified beneficiaries when the fiduciary knows or has reason to know of the actual or perceived conflict.
(5) The fiduciary must maintain a professional relationship with the ward or protected person and must avoid personal relationships with the ward, protected person, or the family or friends of the ward or protected person unless the fiduciary is a family member or the personal relationship existed before the appointment of the fiduciary.
c. Court Approval.
(1) Unless otherwise authorized by the court, the fiduciary shall must not:
(a) Provide non-fiduciary services to the ward or protected person if the fiduciary, or a person or entity closely related to the fiduciary, has a personal or financial interest. For the purposes of this subsection, “closely related” includes a spouse, child, parent, sibling, grandparent, aunt, uncle, or cousin of the fiduciary, and any business, partnership, corporation, limited liability company, trust, or other entity that the fiduciary or a closely related person has a financial interest in, is employed by, or receives compensation or financial benefit from.
(b) Solicit or accept incentives or gifts from service providers other than ordinary social hospitality; or
(c) Solicit or accept a gift from a ward or protected person, or the estate of a ward or protected person, other than ordinary social hospitality.
(2) In those exceptional situations when no other services are available, a fiduciary must seek court approval before providing non-fiduciary services.
(a) When requesting court approval, the fiduciary must demonstrate in writing, and with prior notice to parties entitled to notice, that all alternatives have been identified and considered and that no alternative is available that is reasonable or practical.
(b) Prior court approval is not required in an emergency situation where it is necessary for the fiduciary to provide services to protect the best interests of the ward or protected person, but the fiduciary must document the emergency and the need for the fiduciary to provide the services and promptly inform the court and the parties entitled to notice of the circumstances constituting the emergency and the nature and extent of services provided by the fiduciary.
d. The fiduciary must vigorously protect the rights of the ward or protected person against infringement by third parties.
e. The fiduciary must, whenever possible, provide all pertinent information to the ward or protected person unless the fiduciary is reasonably certain substantial harm will result from providing this information.
f. Pursuant to A.R.S. § 14-5651, the fiduciary must, upon appointment as a guardian or conservator, provide the written information to the ward or protected person and all persons entitled to notice as specified in subsection (F)(4).
g. The fiduciary must not permit or authorize trainees, support staff, or other contracted professionals to provide informed consents or enter into any contractual agreements regarding the ward or protected persons.
3. Decision Making. The fiduciary must exercise extreme care and diligence when making decisions on behalf of a ward or protected person. The fiduciary must make all decisions in a manner that promotes the civil rights and liberties of the ward or protected person and maximizes their independence and self-reliance.
a. The fiduciary must make all reasonable efforts to determine the preferences of the ward or protected person, both past and current, regarding all decisions the fiduciary is empowered to make.
b. The fiduciary must make decisions in accordance with the determined preferences of the ward or protected person, past or current, in all instances except when the fiduciary is reasonably certain the decision will result in substantial harm to the ward or protected person.
c. When it is not possible to determine the preferences of the ward or protected person, the fiduciary must make decisions in the best interest of the ward or protected person.
d. The fiduciary must maintain an awareness of the limitations of the fiduciary's expertise, must carefully consider the views and opinions of those involved in the treatment, care, and management of the ward, protected person, or estate, and must seek independent opinions when necessary.
e. The fiduciary must recognize their decisions are open to the scrutiny of other interested parties and, consequently, to criticism and challenge. Subject to orders of the court, the fiduciary alone is ultimately responsible for decisions made on behalf of the ward, protected person, or estate. The fiduciary must maintain accurate and complete records to support the decisions made in the administration of a case, in compliance with court rules and the applicable sections of the Arizona Code of Judicial Administration.
f. The fiduciary must refrain from making decisions in areas outside the scope of the guardianship, conservatorship, or personal representative order.
4. Guardianship. The fiduciary acting as guardian must assume legal custody of the ward and must ensure the ward resides in the least restrictive environment available. The fiduciary or the fiduciary's qualified representative, must, absent good cause, visit the ward no less than quarterly and as often as is necessary to ensure the ward's well-being. The fiduciary must assume responsibility for providing informed consent on behalf of the ward for the provision of care, treatment, and services and must ensure the care, treatment, and services provided represent the least restrictive form of intervention available.
a. On appointment, the fiduciary must review the statutes, rules, and regulations applicable to guardians and must be informed about changes to these provisions.
b. The fiduciary must be informed and aware of the options and alternatives available for establishing the ward's place of residence.
c. The fiduciary must make decisions in conformity with the preferences of the ward in establishing the residence of the ward unless the fiduciary is reasonably certain this decision will result in substantial harm to the ward.
d. The fiduciary must when it is not possible to determine the preferences of the ward or when it is reasonably certain the ward's preference will result in substantial harm to the ward make decisions with respect to the place of abode of the ward that are in the best interests of the ward.
e. The fiduciary must not remove the ward from the home of the ward or separate the ward from family and friends unless this removal is necessary to prevent substantial harm or because of financial constraints. The fiduciary must make every reasonable effort to ensure the ward resides at home or in a community setting.
f. The fiduciary must seek professional evaluations and assessments whenever necessary to determine if the current or proposed placement of the ward represents the least restrictive environment to the ward. The fiduciary must work cooperatively with available community-based organizations to assist in ensuring the ward resides in a non-institutional environment.
g. The fiduciary must monitor the placement of the ward on an on-going basis to ensure the continued appropriateness of the placement and must consent to changes as they become necessary or advantageous for the ward.
h. The fiduciary must, if the only available placement is not the most appropriate and least restrictive, advocate for the rights of the ward, negotiate a more desirable placement with a minimum of delay, and retain legal counsel for assistance if necessary.
i. The fiduciary must make decisions in conformity with the preferences of the ward when providing consent for the provision of care, treatment, and services unless the fiduciary is reasonably certain these decisions will result in substantial harm to the ward.
j. When it is not possible to determine the preferences of the ward or the ward's preferences will result in substantial harm, the fiduciary must make decisions with respect to care, treatment, and services in conformity with the best interests of the ward.
k. In the event the only available treatment, care or services are not the most appropriate and least restrictive, the fiduciary must advocate for the right of the ward to a more desirable form of treatment, care, or services and must retain legal counsel to assist if necessary.
l. The fiduciary must seek professional evaluations and assessments whenever necessary to determine whether the current or proposed care, treatment, and services represent the least restrictive form of intervention available.
m. The fiduciary must work cooperatively with available individuals and organizations to ensure that the ward receives care, treatment, and services representing the least restrictive form of intervention available and that are consistent with the wishes or best interests of the ward.
n. The fiduciary must not consent to extraordinary medical procedures without prior authorization from the superior court. The procedures the fiduciary must not consent to without prior court approval include abortion, sterilization, organ transplants, psycho surgery, electro-convulsive therapy, medical treatment for clients whose religious beliefs prohibit these treatments, and any other treatments or interventions the court must approve pursuant to state law.
o. The fiduciary must know and follow the laws of the state regarding the withholding or withdrawal of life-sustaining treatment.
p. The fiduciary must regularly monitor the care, treatment, and services the ward is receiving to ensure their continued appropriateness and must consent to changes as they become necessary for or advantageous to the ward. The fiduciary or appropriate designee must be available to respond to an urgent need for medical decisions. The fiduciary must provide instructions regarding treatment or non-treatment by medical staff in emergencies.
q. The fiduciary must ensure that the ward receives all medical and financial benefits to which the ward may be entitled.
r. The fiduciary must protect and manage the monetary interests of the ward when acting in a de facto conservatorship, including not co-mingling funds and assets.
5. Conservatorship. The fiduciary acting as conservator for the estate must provide competent management of the property and income of the estate. The fiduciary must exercise the highest level of fiduciary responsibility, intelligence, prudence, and diligence in the discharge of all duties. A fiduciary must avoid any self-interest in the discharge of this duty.
a. On appointment, the fiduciary must review and be informed about the laws, court rules, and regulations governing management of a protected person's estate.
b. Pursuant to A.R.S. § 14-1104:
(1) The fiduciary must prudently manage costs, preserve the assets of the ward or protected person for the benefit of the ward or protected person and protect against incurring any costs that exceed probable benefits to the ward, protected person, decedent's estate, or trust, except as otherwise directed by a governing instrument or court order.
(2) A guardian ad litem, fiduciary, and fiduciary's attorney for the ward or protected person have a duty to:
(a) Act in the best interest of the ward or protected person.
(b) Avoid engaging in excessive or unproductive activities.
(c) Affirmatively assess the financial costs of pursuing any action compared to the reasonably expected benefit to the ward or protected person.
(3) Market rates for goods and services are a proper, ongoing consideration for the fiduciary and the court during the initial court appointment of a fiduciary or attorney and relating to a request to substitute a court-appointed fiduciary or attorney.
c. On appointment, the fiduciary must take reasonable steps to marshal and secure the property and income of the protected person's estate as soon as possible. The fiduciary must provide stewardship of the property for safekeeping and, at a minimum, record pictorially and establish and maintain accurate records of all real and personal property.
d. The fiduciary must not co-mingle any property or assets of the protected person's estate with those of other clients of the fiduciary in any capacity or with the fiduciary's own property or assets.
e. The fiduciary must manage the income of the estate with the primary goal of providing for the needs of the protected person and, in certain cases, the needs of the dependents of the protected person for support and maintenance.
f. The fiduciary must exercise prudence in the investment of surplus funds of the estate.
g. The fiduciary must petition for and receive authority from the superior court before expending estate funds for gifting.
h. The fiduciary must have no self-interest in the management of the estate and must exercise caution to avoid even the appearance of self-interest.
i. The fiduciary must ensure the protected person receives all medical and financial benefits to which the protected person may be entitled.
j. The fiduciary must ensure that all fees and expenses incurred for the protected person by the fiduciary, including compensation for the services of the fiduciary, are reasonable in amount, necessarily incurred for the welfare of the protected person, and in compliance with ACJA § 3-303.
k. The fiduciary must prepare complete, accurate, and understandable accounts and inventories.
l. The fiduciary must protect the rights and make decisions in the best interest of the protected person when acting in a de facto guardianship.
m. Unless otherwise ordered by the court, the fiduciary must provide timely access to and copies of documents associated with the conservator's annual account, as provided in A.R.S. § 14-5418(C).
6. Personal Representative. A fiduciary acting as personal representative must settle and distribute the estate of the decedent efficiently, timely, and in the best interests of the estate and, if appropriate, in accordance with the terms of any probated and effective will.
a. On appointment, the fiduciary must review and be informed about the laws, court rules, and regulations governing management of a decedent's estate.
b. On appointment, the fiduciary must take reasonable steps to marshal and secure the property and income of the decedent's estate as soon as possible. The fiduciary must provide stewardship of the property for safekeeping and, at a minimum, record pictorially and establish and maintain accurate records of all real and personal property.
c. The fiduciary must not co-mingle any property or assets of the decedent's estate with those of other clients of the fiduciary in any capacity or co-mingle with the fiduciary's own property or assets.
d. A fiduciary must exercise intelligence, prudence, and diligence in providing competent management of the property and income of the estate. A fiduciary acting as a personal representative must observe the standards of care and duties applicable to trustees.
e. A fiduciary must resolve questions in good faith and make decisions that are most beneficial to the estate.
f. A fiduciary must have no self-interest in the management of the decedent's estate and must exercise caution to avoid even the appearance of self-interest.
g. A fiduciary must ensure that all fees and expenses for the estate, including compensation for the fiduciary, are reasonable in amount and necessarily incurred in the administration of the decedent's estate.
h. A fiduciary acting as personal representative must prepare complete, accurate, and understandable court documents including, but not limited to, petitions for determination of heirs, inventories, accounts, and closing statements.
7. Trustee and Power of Attorney. A licensed fiduciary who is acting as a trustee or agent under a power of attorney must abide by this code of conduct, regardless of whether that person is acting pursuant to court appointment.
8. Changes of Circumstances, Limitation, and Termination. The fiduciary has an affirmative obligation to be alert to changes in the ward's or protected person's condition or circumstances, report to the court when an increase or reduction in the authority of the fiduciary should be considered, and seek termination or limitation of the guardianship or conservatorship when indicated.
a. The fiduciary must diligently seek out information to provide a basis for termination or limitation of the guardianship or conservatorship.
b. The fiduciary, upon indication that termination or limitation of the guardianship or conservatorship order is warranted, must promptly request court action, retaining legal counsel if necessary.
c. The fiduciary must assist the ward or protected person in termination or limiting the guardianship or conservatorship and arrange for independent representation for the ward whenever necessary.
9. Reporting Violations. A fiduciary must promptly notify the division if the fiduciary has knowledge that another licensed fiduciary has committed misconduct raising a substantial question as to the fiduciary's honesty, trustworthiness, or qualifications as a licensed fiduciary by filing a complaint under ACJA § 7-201(H).
K. Fee Schedule.
1. Initial Licensure Fees.
a. Individual Licensure--private
(1)
Licensure expiring more than one year after application date
$700.00
(2)
Licensure expiring less than one year after application date
$350.00
(3)
Fingerprint application processing fee
(Rate set by Arizona law and subject to change)
(4)
Trainee Registration Fee:
$ 100.00
b. Individual Licensure--public
(1)
Licensure expiring more than one year after application date
$400.00
(2)
Licensure expiring less than one year after application date
$200.00
(3)
Fingerprint application processing fee
(Rate set by Arizona law and subject to change)
(4)
Trainee Registration Fee:
$100.00
c. Business Licensure--private
(1)
Licensure expiring more than one year after application date
$700.00
(2)
Licensure expiring less than one year after application date
$350.00
d. Business Licensure--public
(1)
Licensure expiring more than one year after application date
$400.00
(2)
Licensure expiring less than one year after application date
$200.00
2. Examination Fees.
a.
Applicants for initial licensure
$ 100.00
b.
Reexaminations
$ 100.00
(For any applicant who did not pass the examination on the first attempt, the $100.00 fee applies to each reexamination.)
c.
Reregistration for Examination
$100.00
(For any applicant who registers for an examination date and fails to appear at the designated site on the scheduled date and time.)
3. Renewal Licensure Fees. Public fiduciary individuals and businesses may pay one half of the biennial renewal licensure fees annually, between April 1 and April 30. Annual payments made between May 1 and May 31 must additionally pay the late renewal fee. Annual payments not made by May 31 may result in disciplinary action against the license holder.
a.
Biennial Individual Renewal (Private)
$600.00
b.
Biennial Business Renewal (Private)
$600.00
c.
Biennial Individual Renewal (Public)
$400.00
d.
Biennial Business Renewal (Public)
$400.00
e.
Inactive Status
$200.00
f.
Late Renewal
$100.00
g.
Delinquent Continuing Education
$100.00
4. Miscellaneous Fees.
a.
Replacement of License or Name Change
$ 50.00
b.
Public Record Request per Page Copy
$ 0.50
c.
Certificate of Correctness of Copy of Record
$ 18.00
d.
Reinstatement Application
$100.00
(Application for reinstatement to licensure after suspension or revocation of licensure.)
L. Continuing Education Policies.
1. Purpose.
a. Court appointed fiduciaries have important responsibilities in serving vulnerable and elderly clients. Fiduciaries are required to demonstrate a basic level of competency to become licensed and practice in Arizona. Ongoing continuing education is one means to ensure a licensed fiduciary maintains continuing competence in the fiduciary field after licensure is obtained. It also provides opportunities for fiduciaries to keep abreast of changes in the fiduciary and legal professions and the Arizona judicial system.
e. These continuing education provisions are intended to provide direction to licensed fiduciaries, to ensure compliance with statutes including A.R.S. § 14-5651(C)(5), court rules, this section, and ACJA § 7-201 and to provide for equitable application and enforcement of the continuing education requirements.
2. Applicability.
a. All licensed fiduciaries must complete a minimum of 10 hours of approved continuing education during the 12-month period between each April 1 and March 31 of the following year for a total of no fewer than 20 hours of continuing education by no later than March 31 of every even-numbered year. The continuing education requirements do not apply to fiduciary entities. Of the 10 hours of continuing education each year, at least 1.5 hours each year must be devoted to ethics as provided in subsection (L)(4)(b)(11). Hours used to satisfy the ethics requirement may not also count against the remaining 7.5 hours of each year's required continuing education hours. Excess continuing education hours completed in a year are not transferable to any year other than the one in which they were completed.
b. All trainees must complete a minimum of 10 hours of approved continuing education during each year in which they are registered as trainees of which at least 1.5 hours each year must be devoted to ethics as provided in subsection (L)(4)(b)(11).
3. Responsibilities of Fiduciaries.
a. It is the responsibility of each fiduciary to ensure compliance with the continuing education requirements, including maintaining documentation of continuing education hours completed, course content, and course materials and submitting such documentation as requested by the division with the renewal application by the renewal deadline.
b. Upon request, each fiduciary must provide any additional information required by the board or division staff when reviewing the application for renewal of licensure, continuing education applications, and other documentation.
c. Continuing education not recognized for credit upon board review does not relieve the fiduciary of the responsibility to complete the required hours of continuing education.
4. Authorized Continuing Education Activities.
a. Continuing education activity must address the areas of proficiency, competency, and performance of a fiduciary and impart knowledge and understanding of the fiduciary profession, the Arizona judiciary, or the legal process. Continuing education must increase the understanding of the fiduciary's responsibilities and the fiduciary's impact on the judicial process and the public.
b. Continuing education activity must include one or more of the following subjects:
(1) Guardianships;
(2) Conservatorships;
(3) Personal representatives;
(4) Trust administration;
(5) Power of attorney;
(6) Mental health;
(7) The Arizona court system including the state and federal constitution, branches of government, Arizona court jurisdiction, the role of judges, and the Arizona tribal court system;
(8) The Arizona Revised Statutes, Arizona Rules of Court, this section, ACJA § 7-201, case law, administrative orders, and current issues in the Arizona court system relevant to the fiduciary profession;
(9) The role and responsibilities of the fiduciary including, but not limited to, this section, ACJA § 7-201, and the code of conduct;
(10) Management issues including office practices, public relations, customer service, accounting, time management, human resources, financial planning, and stress management; and
(11) Ethics for fiduciaries, including cooperation with lawyers, judges, and fellow fiduciaries; professional attire; courtesy; impartiality to all litigants; information vs. legal advice; and public relations.
c. Accredited Activities. Subject to the conditions specified in this policy, programs, seminars, and courses of study offered or approved by the following entities are considered accredited continuing education activities:
(1) Fiduciary Certification Program (FCP);
(2) The National Guardianship Association (NGA);
(3) Arizona Fiduciaries Association (AFA);
(4) National Association of Court Management (NACM);
(5) State Bar of Arizona, Probate Law and Trust Section;
(6) State Bar of Arizona, Mental Health and Elder Law Section;
(7) National Academy of Elder Law Attorneys (NAELA);
(8) National Association of Geriatric Care Managers (NAGCM);
(9) National College of Probate Judges; and
(10) National Association of Social Workers (NASW).
d. Conferences. If a conference is sponsored by organizations or entities listed in subsection (L)(4)(c), a fiduciary may satisfy all of that year's continuing education requirements at the conference, providing that the fiduciary satisfies the 1.5-hour ethics requirement. Introductory remarks, breaks, meals, business meetings, and general sessions of a conference do not qualify as continuing education hours. The fiduciary must obtain documentation of the specific sessions of the conference attended.
e. University, College and Other Educational Institution Courses. A fiduciary may receive continuing education credit for completing a course provided by a university, college or other accredited educational institution with a grade of “C” or better or a “pass” on a pass/fail system. Credit is awarded by multiplying the number of credit hours awarded by the educational institution by two. However, the maximum continuing education credits for completion of such courses must not exceed 50 percent of the total number of continuing education hours required for the renewal period.
f. Authoring or Coauthoring Articles. A fiduciary may receive continuing education credit for authoring or coauthoring an article directly related to the fiduciary profession and published in a state or nationally recognized professional journal relevant to the fiduciary profession or law, if the article is a minimum of 1,000 words in length. A fiduciary may earn a maximum of one hour of continuing education credit for authoring an article or articles in any one renewal period. A fiduciary may not receive credit for the same article published in more than one publication or republished in the same publication in later editions.
g. Self-Study. A fiduciary may receive continuing education credit for self-study activities, including taking correspondence courses, reviewing procedure manuals, watching video presentations, listening to audio materials, attending online seminars, and other methods of independent learning. The maximum hours of continuing education credits earned in a self-study format must not exceed 50 percent of the total number of continuing education hours required during the certification period. The remaining hours must be obtained through training or education provided by one or more faculty or facilitators to an individual or a group using real-time interaction (“live training”).
h. Serving as Faculty. A fiduciary may receive continuing education credit for serving as an instructor, speaker, faculty, or panel member of a continuing education seminar directly related to the fiduciary profession. The fiduciary may receive credit for the actual presentation time, plus up to two hours of actual preparation time for each hour of presentation time. A fiduciary may receive a maximum of ten hours of continuing education credit for serving as faculty in any renewal period; however, a fiduciary may not receive credit for subsequent presentations of a program during the renewal period. A fiduciary may receive continuing education credit for actual presentation time for duplicate programs presented in subsequent renewal periods but will not receive continuing education credit for preparation time for those duplicated programs.
i. Mentoring Activities. A fiduciary will not receive credit for mentoring activities.
5. Minimum Time. Each continuing education activity must consist of at least 30 minutes of “actual clock time” spent by a registrant in actual attendance at and completion of an approved continuing education activity. “Actual clock time” is the total hours attended, minus the time spent for introductory remarks, breaks, meals, and business meetings. After completion of the initial 30 minutes of continuing education activity, a fiduciary may receive credit in fifteen minute increments.
6. Non-Qualifying Activities.
a. The following activities do not qualify for continuing education credit:
(1) Programs completed to qualify for initial licensure;
(2) Programs with a primary focus on teaching nonverbal skills not directly related to the fiduciary profession;
(3) Attendance or participation at professional or association business meetings, general sessions, elections, policymaking sessions, or program orientation;
(4) Serving on committees or councils or as an officer in a professional organization;
(5) Activities completed as required by the board as part of disciplinary action;
(6) Any activity completed as ordered by a judicial officer; and
(7) Activities during which the fiduciary serves as a mentor.
b. Repeat of an Activity. Generally, a fiduciary may not receive credit for repeating an activity within the same renewal period. Exceptions are permissible if the activity is directly related to the fiduciary profession and duplication of the continuing education activity will enhance the fiduciary's knowledge, skill and competency.
c. Attendance. A fiduciary must not claim and will not receive credit for attending part, but not all, of an activity.
7. Documentation of Attendance or Completion. When attending or completing a continuing education activity, a fiduciary must obtain documentation of attendance or completion from the sponsoring entity that must include at least all of the following:
a. Name of the sponsor;
b. Name of the participant;
c. Topic of the subject matter;
d. Number of hours actually attended or the number of credit hours awarded by the sponsoring entity;
e. Date and place of the program;
f. Signature of the sponsor, or documentation representing an official document of the sponsoring entity; for example, a college grade report, etc.; and
g. Signature of the fiduciary, either in the space specifically provided on the form for this purpose or the fiduciary may sign across the documentation (for example, the college grade report) to indicate attendance and completion of the activity.
8. Compliance and Non-Compliance.
a. Affirmation of Compliance. A fiduciary must affirm continuing education compliance when applying for renewal of licensure. The affirmation must be in the format provided by the division.
b. Proration of Continuing Education. A fiduciary initially licensed during the 6-month period between June 1 and December 31 of the second year of the regular licensure period must complete a total of 10 hours of continuing education credit for that 6-month period, including at least 1.5 hours of ethics. A fiduciary initially licensed during the 3-month period between December 31 and March 31 of the second year of the licensure period must complete 5 hours of continuing education credit for that 3-month period, including at least 1 hour of ethics. In subsequent licensure periods, the fiduciary must comply with (L)(2)(a).
(1) This proration provision does not apply to a fiduciary who previously held licensure, allowed the licensure to lapse, and subsequently applied for and was granted licensure during the 6-month period between June 1 and December 31 of the second year of the regular licensure period.
(2) A fiduciary who previously held licensure, allowed the licensure to lapse, and subsequently applied for and was granted licensure during the 6-month period between June 1 of the second year and December 31 of the second year of the regular licensure period is subject to the full 20-hour continuing education requirement 3 hours of which must be devoted to ethics as provided in subsection (L)(4)(b)(11).
f. Extension or Waiver of Continuing Education Requirements. A fiduciary seeking renewal of licensure who has not fully complied with the continuing education requirements may request an extension or waiver of the continuing education requirements under the following conditions:
(1) No later than March 31 of the 12-month period in which the extension or waiver is sought, the fiduciary must submit an affirmation to the board stating the facts and circumstances negatively impacting the fiduciary's ability to fully comply with the continuing education requirements for that period and requesting an extension or waiver of the requirements. On a showing of extenuating circumstances, the board may grant an extension of a maximum of 90 days for the fiduciary to complete the continuing education requirement.
(2) The board must determine whether extenuating circumstances exist. In reviewing the request, the board must consider if the fiduciary has been unable to devote sufficient hours to fulfill the continuing education requirements because of:
(a) Full-time service in the armed forces of the United States during a substantial part of the licensure period;
(b) An incapacitating illness documented by a statement from a currently licensed physician treating the fiduciary;
(c) A physical inability to obtain approved programs documented by a statement from a currently licensed physician treating the fiduciary;
(d) The fiduciary's retirement from the fiduciary profession and not performing any fiduciary services; or
(e) Any other special circumstances the board deems appropriate.
(3) A fiduciary whose license has been restricted, suspended, or revoked by the board is not eligible to request a waiver or extension.
g. Random Audits of Continuing Education Compliance. During each renewal review period, division staff must randomly select at least 10 percent of fiduciary renewal applications for audit of compliance with continuing education requirements. Refusal or failure to respond to a request from the board or division staff for requested documentation of continuing education compliance may result in denial of renewal of licensure or disciplinary action pursuant to ACJA § 7-201 and this section.
e. A fiduciary who fails to complete the continuing education requirement, completes any portion of the continuing education requirement late, falsifies documents, or misrepresents attendance or an activity is subject to any or all of the following actions of the board:
(1) Assessment of the delinquent continuing education fee;
(2) Denial of renewal of licensure; and
(3) Disciplinary action under ACJA § 7-201(H) and this section.
9. Board Decision Regarding Continuing Education Compliance.
a. Upon a review of continuing education documentation and any applicable additional information requested, the board may:
(1) Recognize fiduciary compliance with the continuing education requirement;
(2) Require additional information from the fiduciary seeking renewal before making a decision;
(3) Recognize partial compliance with the requirement and order remedial measures; or
(4) Enter a finding of non-compliance.
b. Division staff must notify the fiduciary, in writing, within ten days of the board's decision. A fiduciary may appeal the decision of the board by submitting a written request for review to the division within 15 days of the date of the notice of the board's decision. The fiduciary may request to appear before the board at the next available regularly scheduled board meeting.
c. The license of a fiduciary who timely appeals a decision by the board regarding continuing education will remain active until a final decision is made by the board.
d. The board must issue a written decision on the appeal. The decision is final and binding.
10. In addition to the provisions of this subsection, the board may require a fiduciary who allows his or her license to lapse or who has been in an inactive status to provide documentation of completion of the required number of continuing education credits for the prior licensure period.

Credits

Effective November 14, 2001. Amended effective November 14, 2002; December 17, 2003; November 24, 2004; January 1, 2007; April 1, 2009; October 14, 2009; September 1, 2012; April 1, 2020; June 7, 2023; November 1, 2023; December 29, 2023.

Footnotes

1
So in original.
AZ ST Code of Jud. Admin, § 7-202, AZ ST CJA § 7-202
State Court Rules are current with amendments received through April 15, 2024. The Code of Judicial Administration is current with amendments received through April 15, 2024.
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