Estate of PKL v. JKS

943 P.2d 847, 189 Ariz. 487
CourtCourt of Appeals of Arizona
DecidedApril 17, 1997
Docket1 CA-CV 94-0108
StatusPublished

This text of 943 P.2d 847 (Estate of PKL v. JKS) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Estate of PKL v. JKS, 943 P.2d 847, 189 Ariz. 487 (Ark. Ct. App. 1997).

Opinion

943 P.2d 847 (1997)
189 Ariz. 487

In the Matter of the ESTATE OF P.K.L., a Protected Person-Appellee,
v.
J.K.S., Guardian, Conservator-Appellant.

No. 1 CA-CV 94-0108.

Court of Appeals of Arizona, Division 1, Department E.

April 17, 1997.
Reconsideration Denied August 27, 1997.
Review Denied September 16, 1997.

*848 Bernstein & Appel by Marlene Appel, Phoenix, and Ulrich, Kessler, & Anger, P.C. by Paul G. Ulrich, William H. Anger, Phoenix, for Appellee.

William F. Behrens, Phoenix, for Appellant.

OPINION

GRANT, Judge.

This is an appeal by the conservator ("J.K.S.") of the estate of an adult incapacitated *849 person ("P.K.L.")[1] challenging the probate court's jurisdiction to enter rulings it made in conjunction with its review of the third annual account filed for the conservatorship by J.K.S., the conservator.

FACTS AND PROCEDURAL HISTORY

P.K.L. was born in 1938. In 1967, he was declared to be mentally incompetent. He is diagnosed as schizophrenic. P.K.L.'s father served originally as the guardian/conservator, but he resigned in 1970 in favor of the Arizona Veterans' Service Commission ("V.S.C.") which served in that capacity until J.K.S. was appointed in December 1989.

Because P.K.L.'s disability was found to be related to military service, he has received both monthly disability benefits from the Veterans' Administration and Social Security benefits. He also is one of the beneficiaries of a sizable trust (the "family trust") that was established by his father, who is deceased.

In approximately 1983, P.K.L. began living with his sister, J.K.S., her husband and three children, in a house owned by a corporation which is owned by the heirs of the parties' father's estate. Eventually, a conflict arose between V.S.C. and J.K.S. when V.S.C. began questioning monies J.K.S. was spending and denied certain monetary requests she made. As a result, in February 1989, J.K.S. petitioned to remove V.S.C. and have herself appointed as guardian/conservator.

Initially, J.K.S.'s petition was contested by V.S.C. and an attorney was appointed to represent P.K.L. An investigator was appointed pursuant to Arizona Revised Statutes Annotated ("A.R.S.") section 14-5308 to provide advice to the court. The investigator reported her concerns that P.K.L. was paying a disproportionate amount of the household expenses for J.K.S.'s family. The investigator recommended that J.K.S. not be appointed as conservator because of her heavy dependence upon P.K.L.'s income which the investigator felt might present a conflict of interest.

Nevertheless, all parties through their counsel stipulated that V.S.C. be removed and that J.K.S. be substituted as the guardian/conservator. The court accepted the stipulation and appointed J.K.S. as conservator. The stipulation and order directed J.K.S. to open an interest-bearing restricted account into which she was to deposit all liquid assets she received on P.K.L.'s behalf. The stipulation and order also provided for J.K.S. to monthly withdraw funds from P.K.L.'s estate to give P.K.L. a weekly allowance of $250 and to pay J.K.S. the amount of $2,000 per month as "room and board for and the reasonable care of P.K.L." Finally, pursuant to the stipulation and order, J.K.S. was required to account to the court as conservator on an annual basis. The order, entered on December 18, 1989, and amended on January 3, 1990, was signed both times by Judge Morris Rozar.

When J.K.S. filed her first annual accounting for the conservatorship for the 1990 calendar year, the court's accountant found a number of irregularities in the accounting. After a series of attempts by J.K.S. and her counsel to correct these accounting irregularities, Probate Judge pro tempore Kenneth W. Reeves, III,[2] who had the duty of reviewing the accounting, gave his approval.

In reviewing J.K.S.'s account filed for 1991, the court's accountant found more irregularities in the figures. The figures were again corrected. Meanwhile, another investigator had been appointed and reported to the court her conclusion that P.K.L. was not getting much in the way of "room and board" for the $2,000 per month being paid to J.K.S. The court's accountant then filed a second report, questioning the reasonableness of the "room and board" charge of $2,000 per month, recommending appointment of counsel for P.K.L., and advising the court to be aware that J.K.S. had made a statement in a response to his last report that during the next year, she was not going to report monies P.K.L. received from the family trust in his conservatorship estate, but instead would *850 be placing these funds in a special account. The probate court appointed counsel for P.K.L. After appointed counsel reported her concurrence in the 1991 account, the probate court approved it.

On January 22, 1993, when J.K.S. filed the 1992 accounting, the probate court intensified its scrutiny of the accounting. After a hearing to consider approval of the annual account, Judge Reeves made the following minute entry ruling:

Counsel is directed to provide the Court with a more detailed explanation of what the conservator does in exchange for $2,000.00 per month and to provide the Court with a copy of the conservator's most recent income tax return showing that the conservator has been reporting this compensation as income within two weeks of today's date.

J.K.S. objected to producing her tax returns, but did not deny that she did not report any of the money she received from P.K.L.'s estate as income on her tax returns. She argued that these funds were not income to her, but were for P.K.L.'s living expenses.

Not being satisfied with this response, on March 9, 1993, the probate court ordered J.K.S. to file a detailed household budget from which it could determine an appropriate contribution from P.K.L. Reiterating its order that she produce her income tax returns, the court stated:

Counsel is advised that the conservator is still subject to an order to submit her income tax return. The return may be submitted under seal, but will be required to provide the Court with sufficient information from which to determine whether the protected person is contributing more than a reasonable share of household expenses. This requirement is routinely imposed upon fiduciaries who seek approval of this Court for periodic block contributions to household expenses. Failure to comply may subject the conservator to sanctions.
While some amounts paid to the conservator may be reimbursement for food and other necessaries, significant amounts are obviously in the nature of rent and compensation. The Court understands that whether it has a duty to bring this matter to the attention of the Internal Revenue Service lies within its discretion, but counsel should be prepared to address that question at the continued hearing.

Although continuing to object, J.K.S. produced her 1991 federal income tax return and additional information showing household expenses. From these sources, the probate court tentatively found that P.K.L.'s monthly share of the household expenses would be less than $700 per month, far below the monthly amount J.K.S. was receiving. Because J.K.S. was not claiming any of the amount as income for services rendered, the court set the matter for further hearing to allow J.K.S.

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Bluebook (online)
943 P.2d 847, 189 Ariz. 487, Counsel Stack Legal Research, https://law.counselstack.com/opinion/estate-of-pkl-v-jks-arizctapp-1997.