Rule 10. Duties Owed by Counsel, Fiduciaries, Unrepresented Parties, and Investigators
Arizona Revised Statutes AnnotatedArizona Rules of Probate Procedure
17B A.R.S. Rules Probate Proc., Rule 10
Rule 10. Duties Owed by Counsel, Fiduciaries, Unrepresented Parties, and Investigators
2. Limited Scope Representation. Subject to the limitations in ER 1.2(c), Rules of Professional Conduct, an attorney may make a limited appearance by filing a notice stating that the attorney and the party have a written agreement that the attorney will provide limited scope representation to the party and specifying the matter or issues with regard to which the attorney will represent the party. Service on an attorney who has made a limited appearance for a party shall be valid, to the extent permitted by statute and Rule 4(f), Arizona Rules of Civil Procedure, in all matters in the case, but shall not extend the attorney's responsibility to represent the client beyond the specific matter for which the attorney has agreed to represent the client. Nothing in this rule shall limit an attorney's ability to provide limited services to a client without appearing of record in any judicial proceedings.
c. file an updated probate information form that contains the information required by Rule 6 of these rules within ten days after any changes in such information, except that if the ward's physical address changes, the ward's guardian shall file the updated probate information form within three days of learning of the change in address; and
d. in the case of an updated probate information form that reflects a change of a subject person's address or telephone number or a change of the fiduciary's address or telephone number, mail or deliver a copy of the updated probate information form to the subject person's court-appointed attorney, the subject person's guardian ad litem, and all parties to the probate case in which the updated probate information form has been filed.
b. Except as provided by in A.R.S. § 14-5419(F) or otherwise ordered by the court, a conservator shall file a final accounting of the protected person's estate within 90 days of the date of the protected person's death. The accounting shall reflect all activity between the ending date of the most recently approved accounting and the date of death of the protected person. The court may extend the date for filing the accounting or relieve the conservator from filing an annual or final accounting.
4. Duties regarding minor's death, adoption, marriage or emancipation. the court-appointed guardian of a minor ward who dies, is adopted, marries or attains majority shall notify the court in writing within ten days of such event. If the minor does not have a conservator at the time the guardianship terminates, the guardian shall provide the court and former minor ward with a written list of any known assets or monies beyond personal effects believed to be owned by the former minor ward.
1. To minimize legal expenses, a fiduciary's attorney shall encourage the fiduciary to take those actions the fiduciary is authorized to perform and can perform competently on the fiduciary's own to fulfill the fiduciary's duties rather than having the attorney take such actions on the fiduciary's behalf.
2. In addition to the requirements set forth in Arizona Rule of Civil Procedure Rule 5.3, an attorney who has appeared in a probate case as counsel of record for a guardian, conservator, personal representative, or trustee shall include with any motion to withdraw a status report that advises the court and parties of any issues pending in the probate case and informs the court and parties whether, to the best of the attorney's knowledge, all required guardian reports, inventories, accountings, and other similar required reports have been filed.
1. Initial Training. Any attorney who serves as a court-appointed attorney or guardian ad litem for a proposed adult ward or adult protected person shall first complete a training course prescribed by the supreme court, which shall issue a certificate of completion. The attorney shall file a copy of the certificate of completion with the court making the appointment. Any attorney who, at the time this rule becomes effective, is serving as a court-appointed attorney or guardian ad litem for an adult ward or protected person shall complete a training course prescribed by the supreme court as soon as practicable and thereafter shall file a certificate of completion with the court making the appointment.
2. Subsequent Training. Any attorney who continues to serve as a court-appointed attorney or guardian ad litem for an adult ward or protected person shall complete an additional training course prescribed by the supreme court every five years and file a certificate of completion as set forth in subsection 1.
3. In a guardianship or conservatorship proceeding, the participation of an attorney representing the subject person shall terminate upon the subject person's death. In extraordinary situations, the court, for good cause shown, may authorize the limited participation of the subject person's attorney after the subject person's death. In such cases, the court shall set forth, in its order authorizing the attorney's continued participation, the basis for the continued participation and the scope of the attorney's participation.
1. Before being appointed as an investigator pursuant to A.R.S. §§ 14-5303(c), 14-5407(b), or 36-540(g), a person shall first complete a training course prescribed by the supreme court, which shall issue a certificate of completion. The investigator shall file a copy of the certificate of completion with the court making the appointment.
c. “Vexatious conduct” means habitual, repetitive conduct undertaken solely or primarily to harass or maliciously injure another party or that party's representative, cause unreasonable delay in proceedings, cause undue harm to the ward or protected person, or cause unnecessary expense. It does not include conduct undertaken in good faith.
Added Sept. 16, 2008, effective Jan. 1, 2009. Amended Sept. 2, 2010, effective Jan. 1, 2011; Dec. 13, 2011 (corrected nunc pro tunc Dec. 22, 2011), effective Feb. 1, 2012, and Sept. 1, 2012; Sept. 2, 2016, effective Jan. 1, 2017.
Rule 10 is designed to help the court oversee and supervise probate cases. Courts are required by other rules to exercise administrative supervision over cases. See, e.g., Ariz. R. Sup. Ct. 92 (describing duties of presiding and associate presiding judges). As part of that supervision, courts should periodically review cases and may, after notice, dismiss or administratively close cases that have not been efficiently prosecuted.
Only an attorney who is a member in good standing with the State Bar of Arizona may represent a party, fiduciary, or other party in a probate proceeding. A family member who is appointed as the fiduciary may represent him or herself in court, but may not speak for or on behalf of other family members. Cf. Byers-Watts v. Parker, 199 Ariz. 466, 467, 18 P.3d 1265, 1266 (App. 2001) (holding that the non-lawyer mother appointed as guardian ad litem for her minor son, could not represent her son in a civil lawsuit without the services of an attorney).
Rule 10(B)(3) is intended to apply to the drafting of documents such as applications, petitions, motions, objections to petitions, responses to motions, notices of hearing, status reports, and similar documents. It is not intended to preclude a physician, psychologist, or nurse from preparing a report to the court nor is it intended to preclude an accountant or bookkeeper from preparing an accounting to be submitted to the court, nor is the rule intended to prohibit such a document from being used as an exhibit.
Probate proceedings require reporting, accounting, and other statutorily mandated action. These requirements are important because they allow the court and interested persons to see whether the probate matter is being effectively administered and help ensure oversight of probate cases. Attorneys and fiduciaries are in the best position to advise the court regarding compliance with statutory and rule-based requirements and to set forth in their motions to withdraw how those requirements have been or will be met. In addition to considering the basis for an attorney's withdrawal, courts are encouraged to consider whether statutory or court-imposed requirements must be met before or after the withdrawal of counsel.
Section (C)(2) of this rule is based on former Rules 127 and 128, Rules of the Supreme Court. The section is included in these rules for the convenience of those who serve as fiduciaries in probate proceedings. In accordance with A.R.S. § 14-5419(F), a conservator may be allowed to file a closing statement in lieu of a final accounting, unless otherwise ordered by the court, as now reflected in Rule (10)(C)(2)(b).
Rule 10(E) applies not only to attorneys appointed by the court pursuant to A.R.S. §§ 14-5303(C) and -5407(B), but also to counsel of the subject person's own choosing, as well as counsel nominated pursuant to Rule 19(B). The purpose of a court-appointed attorney in guardianship and conservatorship proceedings is to represent the interests of the subject person and to protect the subject person's civil liberties. Upon the death of the subject person, the subject person no longer has an interest in his or her estate. Therefore, the subject person's attorney's role in the case is no longer necessary. Moreover, a client's death ordinarily terminates the lawyer's representation of the client. See The American College of Trust and Estate Counsel Foundation, Commentaries on the Model Rules of Professional Conduct MRPC 1.16 (4th ed. 2006). Accordingly, the subject person's death terminates the representation of that person's attorney. Nothing in the rule, however, is intended to preclude the subject person's attorney from participating in the case as a creditor of the subject person's estate.
17B A. R. S. Rules Probate Proc., Rule 10, AZ ST PROB Rule 10
The Arizona Court Rules are current with amendments received through 8/1/18. The Code of Judicial Administration is current with amendments received through 4/15/18.
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