In re Guardianship of Snyder, Not Reported in P.
3d (2015)
2015 WL 3473001
Only the Westlaw citation is currently available.
NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME
COURT 111(c), THIS DECISION IS NOT
PRECEDENTIAL AND MAY BE CITED ONLY AS
AUTHORIZED BY RULE.
Court of Appeals of Arizona,
Division 1.
In the Matter of the GUARDIANSHIP of and
Conservatorship of Melvin SNYDER, An Adult.
Entrust Fiduciary Services, Inc., as Temporary
Conservator, by and through its principal, Lisa M.
Price, Appellant,
v.
Larry Snyder, as Personal Representative,
Appellee.
No. 1 CA–CV 14–0118.
|
May 28, 2015.
| Snyder designated Mosely as joint owner of bank
As Amended on Denial of Reconsideration March
24, 2016.
Appeal from the Superior Court in Yuma County; No.
S1400–GC–2011–00097 The Honorable John N. Nelson,
Judge. REVERSED AND REMANDED.
Attorneys and Law Firms
DeConcini McDonald Yetwin & Lacy, P.C., Barron &
Associates, P.C., Of Counsel, Phoenix By John H. Barron
III, Alexia J. Peterson, Counsel for Appellant.
Hunt & Gale, Yuma By Jeanne Vatterott–Gale, Gerald
Hunt, Counsel for Appellee.
Judge PETER B. SWANN delivered the decision of the
court, in which Presiding Judge KENT E. CATTANI and
Judge LAWRENCE F. WINTHROP joined.
MEMORANDUM DECISION
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SWANN, Judge.
*1 ¶ 1 Deciding cross-motions for summary judgment, the
superior court held that a conservator was liable to a
decedent’s estate for having failed to prevent an allegedly
exploitative caregiver from receiving property upon the
decedent’s death. We reverse and remand. Contrary to the
contentions of the estate’s personal representative, the
conservator’s failure to comply strictly with certain
administrative obligations had no effect on the
distribution of the estate. Further, as a matter of law, the
conservator’s duty was to preserve the protected person’s
estate and provide for his welfare—not unilaterally to
second-guess the validity of his plans for the estate’s
distribution upon his death.
FACTS AND PROCEDURAL HISTORY
¶ 2 In late 2009, Melvin Snyder, an elderly man, engaged
Alvina Mosely to serve as his full-time caregiver. In 2010,
accounts for which his only children, Larry and Steve,
were named as payableon-death beneficiaries. Further, he
took several actions designed to provide benefits to
Mosely upon his death: he signed forms to add Mosely as
a beneficiary on annuity accounts, and he recorded
beneficiary deeds to convey his residence to Mosely.
Later, he executed a general power of attorney granting
Mosely full authority over his assets and liabilities.
¶ 3 In June 2011, a branch manager of Snyder’s bank
notified Steve that Mosely had attempted to use the power
of attorney to change the beneficiary designation on the
payable-on-death accounts from Snyder’s sons to herself.
The manager also reported unusual expenditures from
Snyder’s checking account, as well as transfers from that
account to an account held by Mosely. Steve promptly
contacted Entrust Fiduciary Services, Inc., a licensed
fiduciary, expressing concerns based on the bank
manager’s report and Mosely’s reported receipt of assets.
¶ 4 Entrust investigated the matter and, on June 23, filed a
petition in the superior court requesting to be appointed as
Snyder’s temporary conservator on an emergency basis,
and to be appointed as his permanent conservator after
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In re Guardianship of Snyder, Not Reported in P.3d (2015)
notice and a hearing. In the same petition, Dawn R.
Walters, represented by the same counsel, asked to be
appointed as Snyder’s temporary and permanent guardian.
Entrust and Walters attached a document whereby Steve
waived his priority of appointment and nominated them to
serve as conservator and guardian. Entrust and Walters
alleged that their counsel had telephoned Larry several
times to discuss the matter but received no return call, and
further alleged that according to Steve, Larry wished to
avoid involvement.
¶ 5 The court immediately appointed Entrust as Snyder’s
temporary conservator, entered orders describing Entrust’s
duties, and issued temporary letters of appointment. The
court also appointed Walters as Snyder’s temporary
guardian. Walters terminated Mosely’s employment and,
in July, filed a report under A.R.S. § 46–454 opining that
Mosely had seriously neglected and endangered Snyder’s
health and safety. Around the same time, a courtappointed
investigator filed a report recommending that Snyder be
deemed an incapacitated adult and that he be appointed a
guardian and a conservator. After considering the
investigator’s report and various medical reports, the
court concluded that Snyder required a permanent
guardian because he was an incapacitated person under
A.R.S. § 14–5101(1), and required a permanent
conservator because he suffered from mental impairment
and had property that would be wasted or dissipated if
proper management were not provided.
*2 ¶ 6 Larry objected to Entrust’s request to serve as the
permanent conservator, and asked that he be appointed
instead. The court extended Entrust’s temporary letters of
appointment pending the determination of the appropriate
party to serve as permanent conservator. 1 On January 3,
2012, before this determination was made, Snyder died.
Several weeks after Snyder’s death, Entrust filed a report
under A.R.S. § 46–454. The report described Snyder’s
medical history, identified Mosely’s addition as a
beneficiary on Snyder’s annuity accounts in 2010, and
detailed significant transfers, expenditures, and
withdrawals from his bank accounts from December 2009
through May 2011.
¶ 7 Larry was named personal representative of Snyder’s
estate (“the Estate”). Larry commenced an action against
Mosely, alleging financial exploitation of a vulnerable
adult under A.R.S. § 46–456, tortious interference with
the right to inherit, unjust enrichment, false claim of real
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property, breach of fiduciary duty, fraud/constructive
fraud, conversion, and quiet title. The complaint requested
damages and a declaration that Mosely forfeit any
benefits with respect to the Estate. The matter eventually
settled.
¶ 8 Meanwhile, in May 2012, Entrust filed an inventory of
Snyder’s assets and a petition for approval of its first and
final account, approval of professional fees, final
discharge, and exoneration of bond. Larry, as personal
representative, objected to the petition and requested that
the court surcharge Entrust. Larry contended that Entrust
had “breached its fiduciary duty by not properly
marshaling and re-titling [Snyder]’s assets in such a
manner to prevent Mosely from benefitting after [his]
death[,] ... requir[ing] the Estate of Melvin Snyder to
expend money for attorneys’ fees and court costs to seek
the return of assets left to Mosely via various beneficiary
designations [that would otherwise have been distributed
equally between Larry and Steve].” Larry argued that
Entrust had been well aware of Mosely’s “self-serving
actions” and the fact that she was “named as beneficiary
on the house and other accounts,” and therefore should
have either “retitled” those assets in its name as
conservator or otherwise sought court approval to remove
Mosely as a beneficiary. Larry also took issue with the
timing and content of Entrust’s inventory and accounting.
He did not, however, challenge Entrust’s failure to pursue
recovery of the assets that Mosely allegedly dissipated
during Snyder’s life.
¶ 9 Entrust filed a response and moved for summary
judgment. Entrust argued that its only fiduciary duties
were to Snyder, and showed that it had notified Snyder’s
financial institutions of its appointment and used his funds
to pay for his in-home care. Entrust further argued that it
had no authority to unwind pre-conservatorship planning
by which Snyder had redistributed assets to certain
beneficiaries’ detriment, and in fact was obligated to
protect his plans. Entrust finally argued that its conduct as
temporary conservator did not cause the Estate to incur
damages.
*3 ¶ 10 Larry filed a cross-motion for partial summary
judgment on liability, requesting imposition of a
surcharge and civil contempt sanctions. Larry argued that
Entrust owed a derivative fiduciary duty to the
beneficiaries of the Estate, and that Entrust breached the
duty by protecting pre-conservatorship decisions which it
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In re Guardianship of Snyder, Not Reported in P.3d (2015)
knew were the product of Mosely’s undue influence.
Larry contended that Entrust should have revoked
Mosely’s designation as an annuity beneficiary by
“retitling” the annuities, should have revoked the
beneficiary deeds in favor of Mosely by recording the
letters of conservatorship, and should have timely
reported the circumstances that changed Larry and Steve’s
expected inheritance—or, at the least, should have
petitioned the court for instructions regarding its
responsibilities.
¶ 11 After holding oral argument, the superior court
denied Entrust’s motion and granted Larry’s motion in
part, holding that Entrust was liable for a surcharge as a
matter of law, with the amount of damages to be
determined at trial. The court found that Entrust had failed
to timely file the inventory, accounting, and report of
financial exploitation, failed to record the letters of
conservatorship, and failed to retitle the annuity accounts.
The court concluded that Entrust “had a duty to protect
the estate assets and the estate plan ... includ[ing] not only
the protected person but the beneficiaries of the estate
plan,” but “[t]he statues were not complied with and court
orders were not followed,” resulting in a “fail[ure] to
prevent certain assets from being automatically delivered
or transferred to [Mosely].” The court certified its ruling
on liability as an appealable order.
DISCUSSION
¶ 12 We review the grant of summary judgment de novo.
Andrews v. Blake, 205 Ariz. 236, 240, ¶ 12, 69 P.3d 7, 11
(2003). Summary judgment is appropriate when there is
no genuine dispute of material fact and the movant is
entitled to judgment as a matter of law. Ariz. R. Civ. P.
56(a). A beneficiary is entitled to damages for a breach of
trust if a fiduciary duty existed, the trustee failed to
perform the duty, and the breach caused the beneficiary to
suffer a loss. John E. Shaffer Enters. v. City of Yuma, 183
Ariz. 428, 432, 904 P.2d 1252, 1256 (App.1995).
¶ 13 A conservator is a fiduciary, and is held to the
standard of care required of trustees—the conservator
must exercise reasonable care, skill, and caution, and
must use any special skills or expertise. A.R.S. §§ 14–
5417,–10804,–10806. At oral argument on appeal, Larry
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contended that his allegation of breach of fiduciary duty is
based only on the superior court’s findings regarding
Entrust’s failures to comply with filing and recording
obligations—he expressly disavowed any claim of breach
related to Entrust’s failure to “file a lawsuit or ... take[ ]
greater protective action within the conservatorship.”
¶ 14 As an initial matter, the court’s conclusion that
Entrust did not timely file the inventory was erroneous.
Ariz. R. Prob. P. (“Rule”) 30(A)(1) directs temporary and
permanent conservators to file inventories within 90 days
after issuance of the letters of appointment “[u]nless
otherwise ordered by the court.” Here, the court ordered
Entrust to file the inventory “no later than 90 days after
your letters of permanent conservator are issued.”
(Emphasis in original.) This order was never challenged,
and the condition precedent to Entrust’s obligation to file
an inventory never occurred. Accordingly, the inventory
that it filed after Snyder’s death was not untimely.
Moreover, Larry’s claim that a post-death inventory
deprived him of notice to bring a pre-death action against
Mosely does not withstand scrutiny.
*4 ¶ 15 Further, though Entrust did not timely file the
accounting under Rule 30(B)(4), and did not record the
letters of conservatorship as required by A.R.S. § 14–
5421, these failings did not have any demonstrated
bearing on the distribution of Snyder’s property under his
estate plan. Contrary to Larry’s contention, recordation of
the letters would not have “transferred title [to Snyder’s
residence] to the conservator’s name and thereby
extinguished Mosely’s [beneficiary-deed] interest [in the
residence] .” As an initial matter, it is the issuance of the
letters of appointment that vests legal title in the
conservator—the recording merely serves to give notice
of the event. See A.R.S. §§ 14–5420(A),–5421. Moreover,
the transfer of title to a conservator does not alter the
interests of a beneficiary-deed grantee. Larry emphasizes
that under A.R.S. § 33–405(A), such grantee’s interest is
subject to conveyances and other encumbrances to which
the owner was subject during his lifetime. But this means
only that the grantee takes the same interest that the
owner held at the time of his death, and that the interests
of third parties are not extinguished by virtue of the death.
It does not mean that the imposition of a conservatorship
during the owner’s lifetime abrogates the grantee’s right
to succeed to the owner’s equitable interest.
¶ 16 Larry appears to argue that had Entrust strictly
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In re Guardianship of Snyder, Not Reported in P.3d (2015)
complied with its filing and recording obligations,
Snyder’s estate would have been “collect[ed] and
deliver[ed]” to the court for the court to decide
distribution. Larry provides no authority for this
proposition, and we find none. The conservator’s role is to
manage the protected person’s property so as to avoid
waste and dissipation, and to use the property to provide
for the protected person’s support, education, care, and
benefit. See A.R.S. §§ 14–5401(A)(2)(b), –5425(A). The
only manner in which this obligation intersects with post-
death distribution issues is set forth in A.R.S. § 14–5427,
which provides that the conservator must “take into
account any known estate plan of the protected person
known to [the conservator],” including wills, revocable
trusts, and instruments designed to effect payment or the
transfer or benefits or interests upon the person’s death.
¶ 17 The superior court erroneously relied on A.R.S. §
14–5427 to conclude that Entrust owed a duty to the
estate-plan beneficiaries and was required to “determine
and then re-title the assets” to “prevent [them] from being
automatically delivered or transferred to [Mosely instead
of Larry and Steve].” Section 14–5427 allows the
conservator to avoid “the risk of inadvertent sales of
specifically devised property and the difficult ademption
problems such sales often create.” Unit. Probate Code
(“UPC”) § 5–418 cmt.2 The statute nowhere authorizes
the conservator to revise the protected person’s estate plan
to favor certain putative beneficiaries over others. Estate
plans are not assets that may be used for the protected
person’s benefit—they are merely instruments that
designate how the person’s property will be distributed
upon his death. They are therefore of no concern to a
conservator, except to the extent that the conservator
should try to preserve the protected person’s wishes and
avoid ademption problems. See Ullman v. Garcia, 645
So.2d 168, 170 (Fla.App.1994) (“The last will and
testament ... is not an asset. Neither is it an instrument
which the guardian could use in the recovery of an asset.
It cannot in any way relate to any matter within his power
and duties.... [T]he guardian has, or should have, no
interest whatever either in establishing or disestablishing
a will of his ward.” (citation omitted)). Even if the
conservator believes that certain estate planning was the
product of undue influence, the conservator’s obligation is
to account for the known estate plan. A.R.S. § 14–5427.
Under A.R.S. § 14–5420, the conservator lacks equitable
title to the property, and therefore has no authority to
unilaterally rewrite the plan. To hold that the conservator
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has a duty to alter an existing estate plan would be to
place the conservator in conflict with the duties prescribed
by § 14–5427.
*5 ¶ 18 To be sure, the conservator has the power to
institute judicial proceedings under § 46–456 based on
financial exploitation of a vulnerable adult by a person in
a position of trust and confidence, and such proceedings
may result in court orders that revise the estate plan. See
A.R.S. § 14–5424(C)(24); § 46–456(C), (G). But exercise
of this authority is not mandatory—the conservator has
discretion to determine whether an action should be
brought. See A.R.S. §§ 14–5424(C)(24) (conservator
“may” prosecute actions for the protection of estate
assets),–456(G) (conservator “may” file action against
defendant who financially exploited protected person).
The conservator’s decision must be informed by the
purposes of the conservatorship. Indeed, if litigation could
provide no financial benefit to the protected person, or if
the potential financial benefit to the protected person
reasonably would be outweighed by the cost and risk of
litigation, the conservator should not bring the action. See
In re Guardianship of Sleeth, 226 Ariz. 171, 176, ¶ 21,
244 P.3d 1169, 1174 (App.2010) (holding that conservator
“must avoid the pursuit of pyrrhic victories that
accomplish little but to bankrupt the protected person”);
see also A.R.S. § 14–1104 (effective from and after
December 31, 2011). An action that seeks only to rewrite
a coerced estate plan and that cannot financially benefit
the protected person is not properly brought by the
conservator.
¶ 19 The validity of Snyder’s testamentary bequests to
Mosely was beyond Entrust’s purview as Snyder’s
conservator. And Larry conceded that Entrust’s decision
not to seek damages under § 46–456 for the inter vivos
transfers was reasonable;3 accordingly, Entrust cannot be
held liable for failing to seek judicial revision of the estate
plans.4 Moreover, Larry initiated judicial proceedings
against Mosely to undo estate plans that included Mosely
as a beneficiary, and there is no evidence that any
proceedings that the conservator could have initiated prior
to Snyder’s death would have led to a result different than
that obtained by the personal representative.
¶ 20 The superior court erred by granting summary
judgment against Entrust. Any claim arising out of a
breach of fiduciary duty related to the matters discussed
above fails as a matter of law.
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In re Guardianship of Snyder, Not Reported in P.3d (2015)

further proceedings consistent with this decision.

CONCLUSION All Citations

¶ 21 We reverse the superior court’s order granting Not Reported in P.3d, 2015 WL 3473001
summary judgment against Entrust, and remand for

Footnotes

1 The temporary letters had previously been extended once before, after counsel for Entrust and the
temporary guardian requested a continuance of the hearing on permanent conservatorship and
guardianship. The temporary letters were initially restricted, but were later unrestricted.

2 Arizona’s conservatorship statutes are largely based on the UPC. In interpreting the Arizona statutes, we
may look to analogous sections of the UPC. See In re Estate of Wood, 147 Ariz. 366, 368, 710 P.2d 476,
478 (App.1985).

3 For the first time on appeal, Larry asserts that Entrust should have “retrieved some of th[e] money
[allegedly stolen by Mosely]” to use for Snyder’s benefit during his life. That argument is untimely and
has been waived. Odom v. Farmers Ins. Co. of Ariz., 216 Ariz. 530, 535, ¶ 18, 169 P.3d 120, 125
(App.2007).

4 For the same reasons, the court erred when it concluded that Entrust was liable based on its failure to
promptly investigate and file a report of financial exploitation under A.R.S. § 46–454(A).

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Works.

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