Previously,we wrote about important changes taking effect on January 1, 2012 for those who serve in a fiduciary capacity. Click here for that article. A fiduciary’s compensation is often the subject of controversy and a great deal of acrimony can develop between the interested parties. To help provide guidance, especially within guardianship and conservatorship proceedings, the probate code is changing to give guidance on fiduciary compensation. Under the new A.R.S. § 14-5109 all approved fiduciary compensation must be “reasonable and necessary” and is applicable to those serving as guardians, conservators, and guardians ad litem, The statute is also applicable to attorneys who by virtue of representing a party will be seeking compensation from the estate of the protected person or ward.
The new statute requires the Court to consider the following factors when ruling upon pleadings seeking approval of compensation:
- Whether the services provided any benefit or attempted to advance the best interest of the ward or
- protected person.
- The usual and customary fees charged in the relevant professional community for the services.
- The size and composition of the estate.
- The extent that the services were provided in a reasonable, efficient and cost-effective manner.
- Whether there was appropriate and prudent delegation to others.
- Any other factors bearing on the reasonableness of fees.
The person seeking compensation has the burden of proving the reasonableness and necessity of compensation and expenses sought. There are also notice requirements enumerated in this statute which need to be meticulously complied with. If you are a guardian or conservator, you need to review this statute closely.