Arizona's Probate Courts need better-trained judges and a better way to monitor the costs and care of people who can't manage their own money or affairs because of advanced age or illness.

These are among the dozen initial recommendations by an Arizona Supreme Court committee assigned to help improve the way Probate Courts in each county care for stricken adults and children.

But the committee's toughest assignment still lies ahead: Find specific ways to stop fees charged by attorneys and for-profit fiduciaries, who manage their financial affairs and health care, from draining much or all of the life savings of an incapacitated person, or ward.

An Arizona Republic investigation, which began with a series of columns, found that Probate Court judges can fail to step in and stop the hemorrhaging of a ward's assets through fees. The cases often involve court-appointed private fiduciaries and various attorneys whose charges soar because of legal fights spurred by family disputes.

In response to The Republic's probe, the Arizona Supreme Court in April formed the 20-member Committee on Improving Probate Matters. That committee now says the state needs guidelines to help judges determine if attorneys' and fiduciaries' fees are "reasonable." But the committee is still debating and defining fair measures that would help judges limit total fees.

"That's where the war's going to start," said Mark Salem, a business owner and one of two citizens on the committee, which is made up mostly of judges, attorneys and fiduciaries.

The committee will present its 12 initial recommendations to an Arizona Supreme Court advisory group on Oct. 21. The advisory group can reject or revise the recommendations, send some back to the committee for revision or send them to the Supreme Court with its support.

The committee must submit revised and other new recommendations by June. Some proposals that would require a change in state law may have to go to the Legislature.

In addition to a need for guidelines, the committee is recommending other measures to address the fees issue.

One is to require arbitration, which is a negotiation process, when a dispute breaks out over the fees being billed in a case. Another is to set a deadline for attorneys and fiduciaries to submit to the court their bills, which are paid from the ward's assets. In some instances, bills going back two or more years have been submitted.

A third recommendation has already triggered complaints from some attorneys. The panel has called for the creation of a state law allowing a judge to make family members pay the bill when they press "unreasonable" legal actions or demands on a private fiduciary. Those fees are now paid out of the ward's assets. The law also would apply to "unreasonable" legal actions by fiduciaries and attorneys.

When a private fiduciary is appointed to oversee a ward's money and care, it's not unusual for family members to object to the fiduciary firm's decisions. Sometimes they file persistent legal motions to remove the fiduciary or demand frequent accountings of how the fiduciary is spending the relative's money. The fiduciary uses the ward's money to defend itself in court and to pay itself for answering family members' phone calls.

The fee-shifting recommendation is a first step to stop the ward's estate from being depleted, said probate attorney Jay Polk, a member of the Committee on Improving Probate Court Matters.

"A court needs to be able to tell the family member, 'You need to pay, you need to reimburse the estate for all those fees you caused,' " Polk said.

Critics say the change would discourage relatives from questioning a fiduciary's conduct and fees, even when it's proper.

"If anyone (has the right) to be upset, it's not the private fiduciaries," probate attorney Peter Williams said. "It's the family members who are suddenly having Mom or Dad put into a group home."

Still on the table

The committee is considering other steps, which are not official recommendations, to address fees. Committee members know it is difficult to remove a fiduciary except for a breach of duty, yet steep fees don't qualify as a breach. One proposal would allow a family to replace a private fiduciary at least once in a case simply because the fees are costly; a full court hearing wouldn't be needed.

Other proposals on the table that aren't yet recommendations:

��In determining attorney fees, the court should consider not only time dedicated to a task, but difficulty and results. Also, the court should weigh whether fees will "consume most of the estate."

��Fiduciaries should obtain prior approval for fees and adhere to a budget for the ward. Now, they submit fees and costs to a judge for approval after the money has been spent.

"Just because somebody is incapacitated doesn't mean they don't have to live within their budget," presiding Probate Court Judge Rosa Mroz told committee members.

Training, monitoring

Other recommendations are focused on training for judges, attorneys and others; monitoring the quality of care for wards; and improving Probate Courts' computer and online systems.

Some committee members have chided judges for not keeping strict control over their probate cases, allowing contested cases to drag on and fees to mount. The committee will recommend probate judges complete mandatory annual training and be supplied with a "bench book" for reference.

"A well-trained judiciary is the first line of defense against fraud and abuse by fiduciaries," the committee's initial report states.

The committee also is calling for mandatory training for other professionals involved in probate cases, including court-appointed attorneys and court investigators.

Probate Courts need better data tracking to fulfill their responsibility for monitoring the care and assets of vulnerable people, committee members said. Courts also should create a system to make unannounced, random visits to all wards under its protection.

Reach the reporter at pat.kossan@arizonarepublic.com.