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Public Fiduciary Must Serve When Appointed

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Public Fiduciary must serve

Every Arizona county has one. The public fiduciary in each county acts as guardian, conservator and personal representative. But they only serve when no one else is available. Or, perhaps, the available alternatives have demonstrated that they are unqualified.

Other states have similar offices, but calling them “public fiduciary” is unique to Arizona. In other states they might be the public guardian (as in Utah), or public conservator (as in Michigan), or public administrator (as in New York). Some states might have all three offices, and some counties might even combine them. In about half of the states, there is no comparable office at all.

Arizona’s experiment with the idea began in 1974. For fifty years, they have worked all across the state. In nearly all of the counties, the office investigates and files its own petitions to get involved. But one question has floated around for decades: does the public fiduciary have to serve if appointed?

Leo M.’s story

Back in 1994, Phoenix-area authorities were having a lot of trouble with Leo M. The 38-year-old developmentally disabled man had a pattern of improper sexual advances on minors. He had been charged with crimes a number of times, but each time the charges were dismissed because he was unable to understand the legal proceedings.

Leo’s criminal judge explored the possibility of securing a guardian for Leo. The Division of Developmental Disabilities thought they might have a placement for him. But with no guardian, there would be no one to sign him in.

Ultimately the judge ordered the county public fiduciary to file a guardianship petition on Leo. Once appointed, the judge ordered, the public fiduciary’s office should seek intensive care for him.

The Maricopa County Public Fiduciary demurred. He didn’t think he could be ordered to initiate a guardianship, and he noted that if he was Leo’s guardian he wouldn’t actually have any ability to control his behavior. And the Arizona Court of Appeals agreed.

In Vanderheiden v. Superior Court of Maricopa County, the appellate court ruled that the criminal judge did not have authority to order the public fiduciary to file a petition. The order was reversed, and Leo agreed to enter the offered treatment program without a guardian being appointed.

Dennis T. in Flagstaff

Fast forward to 2001, and north to Flagstaff, Arizona. Dennis T. posed similar problems for that small northern Arizona city, though without the sexual improprieties. After numerous arrests (and dismissals) the Flagstaff City Prosecutor had had enough. He filed a petition with the Coconino County Superior Court, seeking appointment of the county’s public fiduciary as guardian for Dennis.

The public fiduciary objected. She pointed to the Vanderheiden case, and also argued that she would not have any ability to manage Dennis to keep him from offending.

The judge disagreed. She appointed the office as guardian and ordered them to act.

The public fiduciary filed an appeal. She argued that the Vanderheiden applied, and that even as guardian she could not force Dennis into treatment. But the Court of Appeals upheld the lower court ruling. The earlier case held that the public fiduciary could not be forced to file a petition, said the appellate court. But it didn’t say that the public fiduciary could refuse to serve if appointed by the court. Matter of Tsosie, August 31, 2023.

What will happen to Dennis next?

The system’s frustration with Dennis is certainly understandable. And the appellate decision might be technically correct. But the reality — often hard for family members and officials to understand — is that the public fiduciary does not have resources unavailable to other entities or individuals. And a guardian — including a family member acting with that authority — doesn’t have the ability to lock a person into a facility, or force them to accept treatment.

Dennis, as an illustration, has a long history of what sounds like low-level criminal acts. The appellate decision, somewhat oxymoronically, describes him as “a homeless resident of Flagstaff,” and notes that he has been “diagnosed with various behavioral health issues.” That will not change with appointment of a guardian — any guardian. So the public fiduciary is in the unenviable position of being responsible for his care but unable to provide that care. It’s not like they have an employee who can be charged with driving over, picking Dennis up and taking him somewhere else when he berates passersby, or refuses to pay at a restaurant, or drinks publicly and noisily. And where would they take him if there was such an employee?

The bottom line: an Arizona public fiduciary does not have the authority to refuse to accept appointment by the Superior Court judge. But that doesn’t mean that the public fiduciary has sufficient resources — indeed, no guardian can muster those resources — to really control an incapacitated but uncooperative adult’s behavior.

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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

Famous people's wills

Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.