ARIZONA STATE SENATE
Phoenix, Arizona
fiduciary omnibus
Makes changes to laws regarding the regulation of court appointed fiduciaries and establishes a fiduciary arrest warrant.
In Arizona, the superior court may appoint a
fiduciary for a minor, an incapacitated person or an incompetent person. A
fiduciary can be appointed as a guardian, conservator or a personal
representative of a decedent's estate.
The court has the authority to pay fiduciary fees
from the estate of a protected person. If there are no assets to pay the fee of
a fiduciary, a public fiduciary is appointed.
Most counties have public fiduciaries.
The board of supervisors appoints the salaried position of public
fiduciary; however, the Supreme Court certifies both public and private
fiduciaries.
Currently, when a fiduciary ordered to appear in
court does not appear, the court may only issue a civil warrant. A civil arrest warrant is not entered into
the criminal records database. If the offending fiduciary is stopped for a
traffic offense, law enforcement is not aware of the issuance of an arrest
warrant.
H.B. 2351 makes several changes to laws
regulating fiduciaries and authorizes the issuance of a criminal fiduciary
arrest warrant to enforce court orders in probate. The Administrative Office of
the Courts (AOC) states that the issue this legislation is trying to address is
the problem of fiduciaries embezzling money from the persons they
represent.
A fiscal impact to the State may derive from
increased duties to entities relating to the enforcement and processing of
fiduciary arrest warrants.
1. Allows the court to issue a fiduciary arrest warrant if specified requirements are met.
2. Specifies that a warrant commanding the arrest of the named person must be ordered by the judicial officer, issued by the clerk and filed with the criminal justice information system.
3. Allows the authorization of an arrest warrant by facsimile.
4. Specifies that an arrested person may be released on bond unless a compelling reason exists to release the arrested person without bond.
5. Requires a warrant to set forth a bond or an order denying bond until the person is seen by a judicial officer.
6. Requires bond monies to be deposited with the clerk of the court unless the court orders the monies paid to an estate or the fiduciary.
7. Grants a peace officer serving a fiduciary warrant the same powers granted when serving a criminal arrest warrant.
8. Allows the execution of a fiduciary arrest warrant at any time.
9. Requires an arresting officer to inform the named person of the fiduciary arrest warrant unless specified exceptions apply.
10. Allows the arresting officer to use reasonable force to enter any building where the person named in the warrant is believed to be located.
11. Specifies that the arresting officer does not need to possess the warrant at the time of arrest.
12. Requires an arresting officer to show a copy of the warrant as soon as practicable to the arrested person if requested.
13. Specifies that a person must be brought before a judicial officer within 24 hours of the service of the warrant. If the person is arrested in a county other than the warrant issuing county, the county sheriff must transport the person to the issuing county.
14. Requires a judicial officer to advise a person of the nature of the proceedings and set a date for a court appearance.
15. Specifies that investigators, accountants and lawyers are entitled to compensation for services from a decedent's estate. If it is not feasible for an estate to compensate specified persons, the court must pay the compensation determined.
16. Allows criminal justice enhancement funds to be used for investigation and auditing persons certified by the court and for processing judicial discipline cases.
17. Requires applicants to consent to the jurisdiction of the courts for actions arising under fiduciary law.
18. Requires fiduciaries to consent to the appointment of the Fiduciary Program Coordinator as the lawful agent for purposes of accepting service of process in any action relating to the duties of a fiduciary.
19. Increases the minimum age for fiduciary certification from age 18 to 21.
20. Clarifies that the Supreme Court must certify fiduciaries.
21. Eliminates the distinction between court appointed public and private fiduciaries.
22. Clarifies that the Department of Veterans’ Services has priority when the court is appointing a fiduciary.
23. Adds the violation of fiduciary duties as an aggravating factor for sentencing purposes.
24. Adds a person appointed by the Chief Justice as an advisor to a fiduciary program to the list of persons who are immune from civil liability.
25. Adds public fiduciary appointments and the Department of Veterans’ Services to the definition of fiduciary.
26. Blends dually enacted section of law.
27. Makes technical and conforming changes.
28. Provides for a general effective date.
Amendments Adopted by Judiciary Committee
1. Adds a person appointed by the Chief Justice as an advisor to a fiduciary program to the list of persons who are immune from civil liability.
2. Specifies that criminal justice enhancement fund monies may be used for processing judicial discipline cases.
3. Makes technical and clarifying changes.
JUD 2/05/02 DP 9-0-0-1 FIN 4/15/02 DP 7-0-1-0
FII 2/13/02 DP 9-0-0-1 JUD 4/16/02 DPA 5-0-3-0
3rd Read 4/04/02 53-1-6-0
Prepared by Senate Staff
April 18, 2002