State officials expected to be inundated with complaints when a program for certifying fiduciaries and hearing complaints began operating in 1999. They just didn’t expect to still have a backlog of complaints five years later.

“There is a backlog of complaints building,” said Nancy Swetnam, director of the certification and licensing division of the Administrative Office of the Courts, which oversees the Fiduciary Certification Program. “We ‘triage’ them, taking what appears on the face of them to be the most serious cases first.”

Under Arizona law, a fiduciary is someone appointed by a Superior Court judge to serve as a guardian, conservator or personal representative for a person unrelated to the fiduciary and who charges a fee for the service.

J.R. Rittenhouse, manager for the Fiduciary Certification Program, said any time a new avenue opens up to fielding complaints, “you’re never exactly certain how many complaints you’re going to get.”

163 Complaints Since 1999

The cases are backlogged because, “when you’re dealing with someone’s physical or financial well-being, they are often extremely complex cases,” Ms. Rittenhouse said. And those cases often involve serious allegations regarding the fiduciary’s livelihood, “so in all cases, you want to proceed carefully,” Ms. Swetnam said.

The program has received 163 complaints since 1999; of those, 82 are closed and 81 remain open.

Because of that backlog, the program will be asking the Legislature in the next session for a surcharge on birth and death certificates. The six-person agency (which currently has one vacant position) now has a budget of about $481,000. Adding a 50-cent surcharge to the $10 fee for birth certificates and a $1 surcharge to the $10 fee for death certificates would raise an additional $300,000 to $350,000 for the program, said Page Gonzales, lobbyist for the Administrative Office of the Courts.

Hearing complaints and meting out discipline to the state’s 321 professional fiduciaries isn’t the only role of the program. As the name suggests, the five-person agency also is responsible for administering certification of fiduciaries and monitoring compliance with the rules and requirements of being a professional fiduciary.

A spouse or relative often serves the role of fiduciary, but because they are related by marriage or blood and don’t charge a fee, they aren’t required to be certified for the task that they probably will serve once or twice in a lifetime.

But many people, particularly in the highly mobile population of Arizona, for whatever reason may have no survivors or no one living nearby who can provide assistance when they become incapable through injury or illness to make decisions about care and their finances. That’s when a probate judge calls in a professional.

Professional fiduciaries, of course, existed before the creation of Arizona’s program, but they weren’t certified by the state. There was no one point for lodging complaints, so anyone who had a concern about fiduciary’s treatment of a client might take a complaint to the police, or the county attorney or a probate judge.

Legislature Created Program In 1994

A number of high profile cases involving millions of dollars misappropriated by a few fiduciaries led the Legislature in 1994 to create the Fiduciary Certification Program (under ARS 14-5651). Nonetheless, no funding was provided until 1998, so the program didn’t effectively get under way until 1999.

A fiduciary may work for either a nonprofit or for-profit firm or, in the case when a ward doesn’t have the financial resources to pay a private fiduciary, one of Arizona’s public fiduciaries.

A guardian is someone who makes decisions about care for a client who is incapacitated and, therefore, incapable of making those decisions. A conservator is charged with handling the financial assets of a ward who is still living, while a personal representative settles financial assets for the deceased. One person may, at some point, fulfill all three roles for a particular client.

Families And Money

“The vast majority of fiduciaries are doing an excellent job under what are often difficult circumstances,” said Ms. Rittenhouse, who served as a professional fiduciary before joining the program. “It can be very difficult for some family members who may be hundreds of miles away to see decisions being made by someone they don’t know.”

Occasionally, family members don’t know that a parent has designated someone to serve as a fiduciary and it brings out the worst in emotions, Ms. Rittenhouse said. Animosity between children and a parent can be transferred to the professional fiduciary once the parent becomes incapacitated.

“There are cases where wards do have family, and if they had only gotten along, you probably wouldn’t have had to bring a professional in,” Ms. Rittenhouse said.

These are instances in which family members are likely to file a complaint against a fiduciary that may turn out to be groundless.

“You just don’t know if there’s a basis for concern until you’ve spent some time looking at the cases,” Ms. Rittenhouse said. A number of cases have been investigated but the professional fiduciary has done everything required.

Although complaints sometimes are simply frivolous, there is occasionally fire behind the smoke.

Disciplinary measures range from issuing a letter of concern, to censures, resolving violations by consent order or other negotiated settlement, placing restrictions on certification, requiring additional training in a particular area, and others. The ultimate penalty issued by the department is revocation of certification, although, as has been seen in a number of higher-profile cases, instances of fraud and other forms of abuse are referred to law enforcement.

Some of the more serious offenders include Gila County Public Fiduciary Rita Reill-Corbin, who was convicted on multiple counts of embezzling more than $1.2 million from 80 clients. Reill-Corbin is serving a seven-year prison sentence.

Also serving a seven-year prison term is former private fiduciary Frances Goldsmith of Holbrook, who was convicted of stealing more than $1 million from several clients.

Nancy Elliston was the first president of the Arizona Fiduciaries Association and once served as an expert witness in helping convict another fiduciary, Wayne Legg, in another criminal case. Elliston was subsequently convicted of stealing more than $100,000 from 14 clients and is now serving a six-year prison term. —