Demystifying the Public Fiduciary in Arizona

What happens when someone becomes incapacitated and has no family or friends who can step in? Or when an elderly person needs a guardian or conservator but lacks resources for private help? These situations occur more often than you might realize.

This is where Arizona’s public fiduciaries come in. Operating in every county in the state for over 50 years, public fiduciaries serve as the “fiduciary of last resort” for those with nowhere else to turn. Despite their long history, we find that public fiduciaries remain widely misunderstood. We’ll clarify what a public fiduciary does, address common misconceptions, tease some history, and explain why advance planning matters.

The Roles of a Public Fiduciary

A public fiduciary can serve in the following three capacities, sometimes filling all three roles for a single ward. They will not, however, serve as trustees or agents under power of attorney.

As guardians, they make personal and medical decisions for individuals who cannot do so themselves – determining living arrangements, consenting to medical treatments, and making other critical life decisions.

As conservators, they handle financial affairs, paying bills, managing accounts, and protecting assets from exploitation, with perhaps some limitations.

As personal representatives, they administer estates when someone dies without a will or designated personal representative, inventorying assets, paying debts, and distributing property according to law.

Unlike other states that divide these responsibilities among separate offices, Arizona consolidates multiple roles into a single county-funded position. To handle these diverse responsibilities, public fiduciary offices employ attorneys, paralegals, social workers, and finance specialists – multidisciplinary teams to address the complex needs of their wards.

Common Misconceptions

Myth #1: Public fiduciaries have access to special resources

One persistent misconception is that the public fiduciary has access to special funding or can somehow find money or resources for a protected person’s care. In reality, the public fiduciary faces the same financial constraints as any private fiduciary. If an estate lacks sufficient funds, the public fiduciary can utilize a person’s ALTCS benefits to meet their needs, but they cannot manufacture resources. In fact, Arizona law conditions a public fiduciary’s appointment on available resources.

Myth #2: Public fiduciary services are free

Like any professional fiduciary, public fiduciaries track their time and bill the ward’s estate. Superior courts approve public fiduciary fee schedules. Only when an estate has insufficient funds may fees be deferred, reduced, or waived.

The Public Fiduciary and F&C

Public fiduciaries have fascinating roots in Arizona legal history, including a connection to Justice Sandra Day O’Connor. For the full story, check out our podcast episode about public fiduciaries.

Fleming & Curti has its own connection to the local public fiduciary. Our founding partner, Robert Fleming, served as Pima County Public Fiduciary from 1981 to 1986. Robert has described the office as a “bureaucracy” in the best sense: dedicated public servants doing difficult work for those with no other options. After seeing the overwhelming need for more personalized services, he established our practice to fill that gap.

Our firm holds its own fiduciary license, while employing case managers and attorneys with individual licenses – a relatively rare combination. We take a team approach to fiduciary case management, relishing the opportunity to collaborate with our diverse team of professionals to best tailor our services to individual and family needs.

Why Advance Planning Matters

While public fiduciaries perform vital work, they should rarely be part of a primary plan. The reality is that public fiduciary offices often face overwhelming caseloads and demand. As committed as public fiduciaries are to ensuring your basic needs, these conditions make it hard to provide personalized attention.

The best way to avoid a public fiduciary’s involvement is to plan ahead. A comprehensive estate plan includes a will naming trusted individuals to handle your estate, powers of attorney designating people to make financial and healthcare decisions if you become incapacitated, and a trust when appropriate. These documents ensure you maintain control over who makes decisions on your behalf, rather than leaving these critical choices to a court or an overburdened public office.

The Bottom Line

Public fiduciaries serve as an essential safety net for Arizona’s most vulnerable residents. Public servants staff these offices, dedicating much of their waking hours to challenging work.

That said, they act as a safety net only in select cases. And rarely are they a preferred solution. If you have an opportunity to plan ahead, be sure to take it. Proper estate planning helps to ensure that you and your loved ones receive personalized care from people you prefer and trust.