Conflicts of interest include any sale or encumbrance to the personal representative, his spouse, agent or attorney, or any corporation or trust in which he has a substantial beneficial interest, or any transaction which is affected by a substantial conflict of interest on the part of the personal representative.  A.R.S. §14-3713.

Where a personal representative enters into a transaction that creates a conflict of interest, any person with an interest in the estate can petition to have the transaction voided.  There are some exceptions to this general rule, however.  Transactions cannot be voided for conflict of interest where:

• The person seeking to have the transaction voided consented to the transaction after fair disclosure.
• The Will expressly authorizes the transaction.
• A contract entered into by the decedent authorizes the transaction.
• The personal representative gave notice to interested persons and received approval by the court.

Personal representatives, then, are generally prohibited from acting in their own interest when administering a probate estate.  However, they are permitted to act in accordance with the Will, even if it promotes their self-interest.  Where the Will does not give express permission, personal representatives may still be able to enter into certain transactions by obtaining the approval of the court and providing adequate notice to interested parties. 

None of this should be handled without the assistance of legal counsel.  When entering into transactions that create the appearance of a conflict of interest, personal representatives should seek legal assurance that their efforts will be upheld.  An Arizona probate attorney is best qualified to assist in this manner.  For a consultation with a probate  attorney at JacksonWhite, please call (480) 464-1111 and ask speak to someone in the Elder Law department.

Special needs trusts provide a way for people to retain their savings, while at the same time remaining eligible for public benefits.  Assets in a special needs trust are not counted when determining eligibility for AHCCCS medical insurance, ALTCS long-term health care coverage, or SSI cash benefits.  As such, applicants who would not otherwise be eligible to receive these public benefits may be able to qualify after creating a special needs trust.

The purpose of a special needs trust is to supplement the assistance provided by the public benefits that the individual is receiving.  As such, once assets are placed into the special needs trust, the trust assets can only be used for allowable expenses.  Trust assets used for impermissible expenses can be counted as income, causing the individual to be disqualified from public benefits.  Special needs trust funds can be spent on the following types of expenses:

• Home maintenance or repair.
• School tuition and books.
• Appropriate entertainment expenses.
• Supplemental caregiver services.
• Trust management expenses.
• Prepaid burial plans.
• Medical services not covered by public benefits.
• Personal care.
• Clothing.

A special needs trust provides a means for recipients of public benefits to improve their quality of life.  By placing assets in a special needs trust to be used for their supplemental needs, individuals can ensure that their care and comfort are attended to, while remaining eligible for the public benefits they require.  For a consultation with an attorney at JacksonWhite, please call (480) 464-1111 and ask speak to someone in the Elder Law department.

A court must be convinced that it is necessary to appoint a guardian or conservator before it will do so.  Courts will only appoint a guardian if they believe that the proposed ward is incapacitated to the extent that he or she requires assistance with activities such as eating and dressing.  Courts will only appoint a conservator if they believe that the proposed ward will squander his or her assets without assistance.

Family members or friends who believe that somebody they care about requires assistance must undergo an appointment process to seek a guardianship or conservatorship.  To begin with, they must file a petition with the court and also have it served upon the proposed ward.  Additionally, they must provide adequate notice to other interested parties, such as the proposed ward’s spouse and children.  The court will see to it that the proposed ward has an attorney, unless the proposed ward is a minor, and a physician will evaluate the proposed ward’s mental capacity.  The judge will appoint a guardian or conservator if he or she deems fit, and the entire process takes about eight weeks. 

Sometimes it may be necessary to have a guardian or conservator appointed sooner than eight weeks.  In emergency situations, courts will appoint a temporary guardian or conservator.  Courts will only do this if they determine that it is in the proposed ward’s best interest, and the appointment will only last for a brief period of time.  In order to maintain the guardianship or conservatorship, a hearing will have to take place that follows the normal procedure. 

Arizona guardianship and conservatorship proceedings can become complicated.  This is particularly true where they are contested and disagreements arise as to who should act as guardian or conservator.  An attorney with experience handling guardianships and conservatorships is best qualified to assist with the proceedings.  For a consultation with an attorney at JacksonWhite, please call (480) 464-1111 and ask speak to someone in the Elder Law department.

A person who titles a bank account in joint ownership ultimately loses the ability to bequest the account through a will.  Even where a will provision specifically mentions a bank account, it may not pass to the beneficiary if the account is titled jointly.  This means that people should be extremely cautious when adding a joint owner to a bank account.  People many times inadvertently make permanent estate planning decisions in the name of adding a loved one to their bank account for the sake of expediency.

The truth is that joint ownership can be a very important and useful tool when it comes to creative estate planning.  However, there are serious implications when adding a joint owner to your bank account.  The possibility is here to inadvertently disinherit your loved ones in this manner.  It may be prudent to consult with your estate planning attorney when making changes to how your finances are arranged.  Making important and lasting decisions without qualified legal counsel can create problems that could easily have been avoided.  For a consultation with an attorney at JacksonWhite, please call (480) 464-1111 and ask speak to someone in the Elder Law department.

Despite the clear language of Form 204, the Arizona Department of Revenue issued late filing penalties this year to many Arizona residents who submitted timely federal extensions. Many taxpayers were issued penalties for hundreds of dollars without cause. This no doubt came as a shock to those who filed federal extensions in the past without raising issue with the Arizona Department of Revenue. Likewise, those who relied on Form 204 have good reason to be dismayed by the late filing fees. The fact of the matter is that the Arizona Department of Revenue must abide by its standing policy of extending state filing dates by the length of the extension granted at the federal level.

Arizona residents cannot be fined by the Department of Revenue for late filing if they submitted a timely request for a federal extension. If the IRS granted you an extension and you nevertheless received a penalty from the Department of Revenue, contact JacksonWhite to determine your best course of action. If you have already paid a fine to the Department of Revenue, which you believe was without basis, redress may be available. Contact JacksonWhite to discuss the facts of your situation in detail.

The article showed that elderspeak takes many forms: A daughter goes out to eat with her elderly mother and the waiter only addresses the daughter. A salesperson addresses an elderly customer slowly and in loud voice. A paid caregiver routinely addresses a senior as “sweetie.” While all of these examples may appear harmless on the surface, research has shown that the effects of elderspeak on seniors can be quite detrimental. Perhaps worst of all, elderspeak can contribute to seniors having a negative self-perception, which is thought by some researchers to decrease life-expectancy by an average of 7.5 years!

As with most wide-reaching social dilemmas, the elderspeak problem won’t be resolved quickly, but we can each do something on an individual level. Our Elder Law team has found that basic common courtesies go a long way towards developing meaningful relationships no matter what the age is of the people we are serving. What have you noticed about elderspeak? What can we as a community to get rid of it?

That’s exactly what happened to a 98-year-old woman in Washington State. The woman’s family claims that over the years, they’ve been repeatedly assured by facility management that their loved one could stay at the facility when her money ran out and have Medicaid pick up the payments but it appears the facility’s corporate owners changed their policy regarding the acceptance of such payments – leaving the woman to fend for herself.

We have seen similar corporate decisions occur in Arizona-based assisted living facilities. Arizona families have relied upon the assurances that the facility would accept Medicaid payments once the resident qualified for coverage only to be informed later, after the resident has lived in the facility for a time, of the company’s change in policy.  If this has happened to someone you know, please contact us so that we can gather this information and provide it to appropriate authorities.