Nebraska, Texas, Arizona, Colorado – states taking on probate issues

A few quick notes on state legislative activities we’ve been watching.  As believers in states’ rights, EstateofDenial.com finds this an exciting time.

We posted a story several days ago on proposed legislation in Nebraska to increase oversight of guardians and conservators.  The changes are described as coming from a 15-member task force task force created by Nebraska Supreme Court Chief Justice Mike Heavican and comprising senators, judges, attorneys and law enforcement.  This task force’s credibility could likely have been enhanced with a few public-at-large members having practical experience in this area so as to infuse a bit of “reality” in how these situations occur, but evidently that was not to be.  Time will tell if this was a missed opportunity or a well-executed “by design” omission.

Past that, the task force produced a list of 55 suggested improvements.  Per Lincoln Sen. Colby Coash, the bill’s sponsor, some improvements are included in his new bill, others are to be implemented by court rule.

Coash is also quoted saying that in light of the state’s financial problems, many of the changes requiring expenditures of state money weren’t included in the bill.  This echoes our earlier discussion of how other issues (budget shortfall, redistricting, health care, education and immigration) are going to be “headliners” in the current Texas legislative session with secondary issues like probate seeing more limited action.

This is likely to be something of a trend nationwide, but in today’s economic times, it’s reality.  Remember, you do what you can.  In politics, it’s about getting what you can, not always what you want.  And activists in various states are making headway and the momentum will only grow.

By the way, we’re in the process of analyzing the Texas legislation currently introduced and will have comments on that upcoming.

Arizona saw the filing of House Bill 2424 which seeks to “remedy rampant financial exploitation and abuses by Arizona’s probate court-ordered fiduciaries and others in the court system.”  In response to this bill’s introduction, we came across some good comments on that web site we so much like SonoranAlliance.com that illustrate the discussion’s direction as all the sides start weighing in:

No limits on prosperity Says:
January 22nd, 2011 at 7:42 pm

Received about this bill:

I understand that you are one of the sponsors of HB2424 the fiduciary fee regulating bill. I would urge you not to proceed with this bill as it is only going to drive the well qualified fiduciaries away from the profession and serve to attract the under qualified to serve in a very responsible position that they will not do well.

I would like to ask why the fee regulation is not applied to attorneys who are representing the ward and who charge between $300 and $400 per hour doing a job, albeit legal, that has far less responsibility than the fiduciary who is responsible for making all decisions for the ward, where he lives, how he is treated medically, the payment of his bills, management of his finances and having the responsibility to decide on when life shall be ended.

But you say attorneys are a learned profession and deserve to be better compensated. Attorneys have a bachelor’s degree and a JD. Most fiduciaries have an undergraduate degree, master’s degree; some have PhDs as well as JDs. Many are or have been practicing attorneys. Most are trained in social
work and have vast experience in making major life decisions for others.

Where is the justification in limiting fees that a fiduciary can charge to $75 per hour when an attorney who has far less experience in the field can charge exorbitant legal fees based on his law license?

The objective of bill I fully understand is to avoid the squandering of the assets of the ward. But you must understand also that the profession is fully regulated by the Courts and overseen by the Supreme Court. The responsibility that a fiduciary has is enormous. It is dealing with the life of a person in every way possible and that responsibility should be adequately compensated.

James D. Otis BS, LF #20594
Otis Fiduciary & Guardianship Services, LLC
22487 North Mulligan Drive
Maricopa, AZ 85138
480-491-6442 Direct
480-621-7896 Fax
jimotis007@cox.net

http://www.JamesDOtis.com

wanumba Says:
January 22nd, 2011 at 7:43 pm
There may well be a problem in probate, but this doesn’t really look like the correct way to solve it. For example, capping fees always screws up the market for goods and services – hampering the market’s ability to react to changes. Capping fees always ends up with forcing providers out of the market, meaning fweer choices and lower quality.

Not very happy with antecdotal evidence as basis for law instead of a comprehensive study to determine what really is going on. The media has been egrecious in promoting politics over truth.

The action still revolves around preserving probate making decisions about personal circumstances it only has a limited ability to understand, given the volume of cases and the information available to it.

It would be more interesting to find out how this could be weaned off probate altogether.

Gail Says:
January 23rd, 2011 at 7:34 am
Sounds like someone is afraid of getting cut out of a good gig! I didn’t read anything in the bill that gave a $75 cap? Competition is a scary thing….

The GAO report was pretty comprehensive. It looks to me that the biggest problem is the lack of disclosure and some very shady “inside trading”.

A person that is the court ordered investigator to determine if someone needs a fiduciary is also the owner of one of the biggest agencies receiving bazillion dollars in court ordered clients….conflict of interest much?

Sherry Lund Says:
January 23rd, 2011 at 5:06 pm
Please read Bill 2424 BEFORE you criticize it. It is a great Bill and also puts the responsibility on the Judges first. If the judges protected the rights of the people, there would be no problem with the fiduciaries and attorney’s. The judge is the one who is supposed to see that the parties are protected, make the appropriate rulings to see that the fiduciaries and attorney’s are NOT abusing the parties and if the judge is made aware that there are violations going on, he is to stop it and make things right. This is not happening. The judges are violating the rights of the people from day one in court. Through intimidation, the judges have convinced the parties and attorney’s that they have absolute immunity when in fact they do NOT. The US Supreme Court has ruled that if a judge rules ‘maliciously’ or ‘corruptly’, they are NOT immune from prosecution and accountability.
If people don’t know their rights….they don’t have any. This is the way the courts currently behave.
It is time for reform, accountability and transparency in our judicial system.

Stay with us as later this week as we also hope to have new info on legislation being introduced in Colorado.

Great reader comments are coming in on the different stories and legislative actions we’ve been covering.  The enthusiasm and interest is truly appreciated.  We see merit in tightening probate laws to better protect designated heirs/beneficiaries or, in the case of guardianships, the wards and their assets, but execution is key and cannot be viewed as guaranteed.

But more on that in the upcoming weeks….