Chapter 0270 - 522R - H Ver of SB1296

Be it enacted by the Legislature of the State of Arizona:

Section 1. Section 14-5101, Arizona Revised Statutes, is amended to read:

START_STATUTE14-5101. Definitions

In this title, unless the context otherwise requires:

1. "Contact" includes in-person contact, written communication and all forms of electronic communications.

2. "Contact order" means an order allowing contact between a ward and a person with a significant relationship to the ward.

1. 3. "Incapacitated person" means any person who is impaired by reason of mental illness, mental deficiency, mental disorder, physical illness or disability, chronic use of drugs, chronic intoxication or other cause, except minority, to the extent that he lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his person. In cases of limited guardianship only, a person is not deemed an incapacitated person for purposes of voting if the person files a petition, and has a hearing and the judge determines by clear and convincing evidence that the person retains sufficient understanding to exercise the right to vote pursuant to section 14‑5304.02.

2. 4. "Investigator" means a person who is appointed by the court under section 14‑5308.

5. "Joint legal decision‑making" has the same meaning prescribed in section 25‑401.

6. "Legal decision‑making" has the same meaning prescribed in section 25‑401.

7. "Parenting time" has the same meaning prescribed in section 25‑401.

3. 8. "Physician" means a person licensed pursuant to title 32, chapter 13 or 17.

4. 9. "Protected person" means a minor or any other person for whom a conservator has been appointed or any other protective order has been made.

5. 10. "Protective proceeding" means a proceeding under the provisions of section 14‑5401 to determine that a person cannot effectively manage or apply his estate to necessary ends, either because he lacks the ability or is otherwise inconvenienced, or because he is a minor, and to secure administration of his estate by a conservator or other appropriate relief.

6. 11. "Psychologist" means a person licensed pursuant to title 32, chapter 19.1.

7. 12. "Registered nurse" has the same meaning as prescribed in section 32‑1601.

13. "Significant relationship" means the person either is related to the ward by blood or marriage or is a close friend of the ward as established by a history of pattern and practice.

14. "Visitation" has the same meaning prescribed in section 25‑401.

8. 15. "Ward" means a person for whom a guardian has been appointed. "Minor ward" means a minor for whom a guardian has been appointed solely because of minority. END_STATUTE

Sec. 2. Section 14-5303, Arizona Revised Statutes, is amended to read:

START_STATUTE14-5303. Procedure for court appointment of a guardian of an alleged incapacitated person

A. The alleged incapacitated person or any person interested in that person's affairs or welfare may petition for the appointment of a guardian or for any other appropriate protective order.

B. The petition shall contain a statement that the authority granted to the guardian may include the authority to withhold or withdraw life sustaining treatment, including artificial food and fluid, and shall state, at a minimum and to the extent known, all of the following:

1. The interest of the petitioner.

2. The name, age, residence and address of the alleged incapacitated person.

3. The name, address and priority for appointment of the person whose appointment is sought.

4. The name and address of the conservator, if any, of the alleged incapacitated person.

5. The name and address of the nearest relative of the alleged incapacitated person known to the petitioner.

6. A general statement of the property of the alleged incapacitated person, with an estimate of its value and including any compensation, insurance, pension or allowance to which the person is entitled.

7. The reason why appointment of a guardian or any other protective order is necessary.

8. The type of guardianship requested. If a general guardianship is requested, the petition must state that other alternatives have been explored and why a limited guardianship is not appropriate. If a limited guardianship is requested, the petition also must state what specific powers are requested.

9. If a custodial legal decision‑making, parenting time or visitation order was previously entered regarding an alleged incapacitated person in a child custody marriage dissolution, legal separation or paternity action or similar proceeding in this state or another jurisdiction and the petitioner or proposed guardian is a parent of the alleged incapacitated person or a nonparent custodian of who has been awarded legal decision‑making as to the alleged incapacitated person, the court and case number for that action or proceeding and include a copy of the most recent court order regarding legal decision‑making, parenting time and visitation.

10. If the appointment of a guardian is necessary due solely to the physical incapacity of the alleged incapacitated person.

C. On the filing of a petition, the court shall set a hearing date on the issues of incapacity. Unless the alleged incapacitated person is represented by independent counsel, the court shall appoint an attorney to represent that person in the proceeding. The alleged incapacitated person shall be interviewed by an investigator appointed by the court and shall be examined by a physician, psychologist or registered nurse appointed by the court. If the alleged incapacitated person has an established relationship with a physician, psychologist or registered nurse who is determined by the court to be qualified to evaluate the capacity of the alleged incapacitated person, the court may appoint the alleged incapacitated person's physician, psychologist or registered nurse pursuant to this subsection. The investigator and the person conducting the examination shall submit their reports in writing to the court. In addition to information required under subsection D, the court may direct that either report include other information the court deems appropriate. The investigator also shall interview the person seeking appointment as guardian, visit the present place of abode of the alleged incapacitated person and the place where it is proposed that the person will be detained or reside if the requested appointment is made and submit a report in writing to the court. The alleged incapacitated person is entitled to be present at the hearing and to see or hear all evidence bearing on that person's condition. The alleged incapacitated person is entitled to be represented by counsel, to present evidence, to cross‑examine witnesses, including the court‑appointed examiner and investigator, and to trial by jury. The court may determine the issue at a closed hearing if the alleged incapacitated person or that person's counsel so requests.

D. A report filed pursuant to this section by a physician, psychologist or registered nurse acting within that person's scope of practice shall include the following information:

1. A specific description of the physical, psychiatric or psychological diagnosis of the person.

2. A comprehensive assessment listing any functional impairments of the alleged incapacitated person and an explanation of how and to what extent these functional impairments may prevent that person from receiving or evaluating information in making decisions or in communicating informed decisions regarding that person.

3. An analysis of the tasks of daily living the alleged incapacitated person is capable of performing without direction or with minimal direction.

4. A list of all medications the alleged incapacitated person is receiving, the dosage of the medications and a description of the effects each medication has on the person's behavior to the best of the declarant's knowledge.

5. A prognosis for improvement in the alleged incapacitated person's condition and a recommendation for the most appropriate rehabilitation plan or care plan.

6. Other information the physician, psychologist or registered nurse deems appropriate. END_STATUTE

Sec 3. Section 14-5306, Arizona Revised Statutes, is amended to read:

START_STATUTE14-5306. Termination of guardianship for incapacitated person

except pursuant to section 14-5317, the authority and responsibility of a guardian for an incapacitated person terminates on the death of the guardian or ward, a determination of incapacity of the guardian, or substitution or resignation as provided in section 14‑5307. Testamentary appointment under an informally probated will terminates if the will is later denied probate in a formal proceeding. Termination does not affect the guardian's liability for prior acts or the guardian's obligation to account for funds and assets of the guardian's ward.END_STATUTE

Sec. 4. Section 14-5309, Arizona Revised Statutes, is amended to read:

START_STATUTE14-5309. Notices in guardianship proceedings

A. In a proceeding for a contact order or modification of a contact order pursuant to section 14‑5316 or for the appointment or substitution of a guardian of a ward or an alleged incapacitated person other than the appointment of a temporary guardian or temporary suspension of a guardian, notice of a hearing shall be given to each of the following:

1. The ward or the alleged incapacitated person and that person's spouse, parents and adult children.

2. Any person who is serving as guardian or conservator or who has the care and custody of the ward or the alleged incapacitated person.

3. In case no other person is notified under paragraph 1 of this subsection, at least one of that person's closest adult relatives, if any can be found.

4. Any person who has filed a demand for notice.

B. At least fourteen days before the hearing notice shall be served personally on the ward or the alleged incapacitated person, and that person's spouse and parents if they can be found within the state. Notice to the spouse and parents, if they cannot be found within the state, and to all other persons except the ward or the alleged incapacitated person shall be given as provided in section 14‑1401. Waiver of notice by the ward or the alleged incapacitated person is not effective unless that person attends the hearing. END_STATUTE

Sec. 5. Section 14-5311, Arizona Revised Statutes, is amended to read:

START_STATUTE14-5311. Who may be guardian; priorities

A. Any qualified person may be appointed guardian of an incapacitated person, subject to the requirements of section 14‑5106.

B. The court may consider the following persons for appointment as guardian in the following order:

1. A guardian or conservator of the person or a fiduciary appointed or recognized by the appropriate court of any jurisdiction in which the incapacitated person resides.

2. An individual or corporation nominated by the incapacitated person if the person has, in the opinion of the court, sufficient mental capacity to make an intelligent choice.

3. The person nominated to serve as guardian in the incapacitated person's most recent durable power of attorney or health care power of attorney.

4. The spouse of the incapacitated person.

5. An adult child of the incapacitated person.

6. A parent of the incapacitated person, including a person nominated by will or other writing signed by a deceased parent.

7. Any relative of the incapacitated person with whom the incapacitated person has resided for more than six months before the filing of the petition.

8. The nominee of a person who is caring for or paying benefits to the incapacitated person.

9. If the incapacitated person is a veteran, the spouse of a veteran or the minor child of a veteran, the department of veterans' services.

10. A fiduciary who is licensed pursuant to section 14‑5651, other than a public fiduciary.

11. A public fiduciary who is licensed pursuant to section 14-5651.

C. A person listed in subsection B, paragraph 4, 5, 6, 7 or 8 of this section may nominate in writing a person to serve in that person's place. With respect to persons who have equal priority, the court shall select the one the court determines is best qualified to serve.

D. Notwithstanding the priorities set forth in subsection B of this section, if the petition for appointment of a guardian for the incapacitated person is filed pursuant to section 14‑5301.03 or within two years after the INCAPACITATED person's eighteenth birthday, unless the court finds the appointment to be contrary to the incapacitated person's best interest:

1. The court shall appoint as the incapacitated person's guardian any person who, by court order, had sole legal decision-making of the incapacitated person when the incapacitated person attained eighteen years of age.

2. If two persons had joint legal decision‑making of the incapacitated person when the incapacitated person attained eighteen years of age, the court shall appoint both persons as the incapacitated person's co-guardians.

E. The court may appoint more than one person as the incapacitated person's co‑guardians if the appointment is required by subsection D of this section or the court finds that the appointment is in the incapacitated person's best interest. If the court appoints co‑guardians, the co‑guardians shall share decision‑making for the INCAPACITATED person and neither co‑guardian's rights or responsibilities are superior except as otherwise ordered by the court.

D. F. For good cause the court may pass over a person who has priority and appoint a person who has a lower priority or no priority. For the purposes of this subsection, "good cause" includes a determination that:

1. The incapacitated person's durable power of attorney or health care power of attorney is invalid.

2. Honoring the incapacitated person's durable power of attorney or health care power of attorney would not be in the physical, emotional or financial best interest of the incapacitated person.

3. The estimated cost of the fiduciary and associated professional fees would adversely affect the ability of the incapacitated person's estate to provide for the incapacitated person's reasonable and necessary living expenses.

E. G. On a request by a person who was passed over by the court pursuant to subsection D F of this section, the court shall make a specific finding regarding the court's determination of good cause and why the person was not appointed. The request must be made within ten days after the entry of the order. END_STATUTE

Sec. 6. Title 14, chapter 5, article 3, Arizona Revised Statutes, is amended by adding sections 14-5316 and 14-5317, to read:

START_STATUTE14-5316. Maintaining ward's relationships; contact orders; definitions

A. A guardian shall encourage and allow contact between the ward and other persons who have a significant relationship with the ward.

B. Notwithstanding subsection A of this section, a guardian may limit, restrict or prohibit contact between the ward and any person if the guardian reasonably believes that the contact will be detrimental to the ward's health, safety or welfare.

C. In exercising the guardian's powers pursuant to subsections A and B of this section, the guardian shall consider the wishes of the ward, if the ward has sufficient mental capacity to make an intelligent choice.

D. A person who has a significant relationship to the ward may petition the court for an order compelling the guardian to allow the person to have contact with the ward. The petition shall describe the nature of the relationship between the person and the ward and the type and frequency of contact being requested. The person has the burden of proving that the person has a significant relationship with the ward and that the requested contact is in the ward's best interest.

E. A ward may petition the court for an order compelling the guardian to allow the ward to have contact with a person who has a significant relationship to the ward. The petition shall describe the nature of the relationship between the person and the ward and the type and frequency of contact being requested. The ward has the burden of proving that the person has a significant relationship with the ward and that the requested contact is in the ward's best interest.

F. In determining what, if any, contact between the person and the ward is in the ward's best interest, the court shall consider all factors that are relevant to the ward's physical and emotional well-being, including the following:

1. The past and present relationship between the ward and the person with whom the contact is requested.

2. The wishes of the ward if the ward has sufficient mental capacity to make an intelligent choice.

3. The mental and physical health of the ward and the person with whom the contact is requested.

4. Whether the person with whom the contact is requested has committed any act involving domestic violence as defined in section 13‑3601, child abuse or abuse, neglect or exploitation of a vulnerable adult.

5. Whether the person with whom the contact is requested has abused drugs or alcohol or has been convicted of any drug offense listed in title 13, chapter 34 or a violation of title 28, chapter 4, article 3.

6. Whether the person with whom the contact is requested is listed in the elder abuse central registry pursuant to section 46-457 or is required to register pursuant to section 13-3821.

7. Whether the person with whom the contact is requested has been convicted of a violation of section 13-2907.02 or 13-2907.04.

g. If the petition for contact is filed pursuant to section 14‑5301.03 or within two years after the ward's eighteenth birthday, any contact with the ward authorized in the most recent parenting time or visitation order shall be presumed to be in the ward's best interests, but the presumption may be rebutted by evidence showing that the contact authorized in the most recent parenting time or visitation order is no longer in the ward's best interests.

H. A court‑appointed fiduciary for the ward or a person who has a significant relationship to the ward may petition the court to modify a contact order, if a material change in circumstances affecting the ward's health, safety or welfare has occurred since the last contact order was made. The petition shall be supported by an affidavit alleging the change of circumstances that has occurred since the entry of the last contact order. The court shall deny the petition unless the court finds that the petition establishes good cause for hearing, in which case the court shall set a hearing on the petition. The petition and notice of the hearing on the petition shall be served on all persons to whom notice is required PURSUANT to section 14‑5309 and on any court‑appointed fiduciary for the ward.

I. A court‑appointed fiduciary for the ward or a person who has a significant relationship to the ward may file a motion asking the court to temporarily modify or suspend a contact order, if a material change in circumstances affecting the ward's health, safety or welfare has occurred since the last contact order was made. The motion shall be supported by an affidavit alleging the change of circumstances that has occurred since the entry of the last contact order. The motion shall be filed contemporaneously with or after the filing of a petition to modify the prior contact order. The motion shall state whether the petitioner requests that the prior contact order be modified or suspended with or without notice to affected persons.

J. The court may temporarily modify or suspend a contact order without notice only if both of the following conditions are met:

1. It clearly appears from specific facts shown in the motion or affidavit that immediate and irreparable injury, loss or damage likely will result if the order is not issued before the affected persons can be heard in opposition.

2. The moving party or the party's attorney certifies to the court in writing the efforts, if any, that the moving party or the party's attorney has made to give the notice or the reasons supporting the claim that notice should not be required.

K. If the court grants a motion to temporarily modify or suspend a contact order without notice, the court shall set a hearing on the motion.

L. An order temporarily modifying or suspending a contact order that is granted without notice shall state the injury, loss or damage that would have been likely to occur if the order were not issued before giving the affected persons the opportunity to be heard in opposition. The temporary order shall expire at the date and time set for the hearing on the motion unless the temporary order is extended by the court for good cause.

M. The moving party shall personally serve the person whose contact with the ward has been modified or suspended with a copy of the order and notice of the hearing. The moving party shall have served a copy of the order on any court‑appointed fiduciary for the ward and all persons affected by the order as soon as practicable after issuance of the order in the manner prescribed in section 14-5309 or as otherwise ordered by the court.

N. For the purposes of this section:

1. "Abuse" in relation to a vulnerable adult has the same meaning prescribed in section 46-451.

2. "Child abuse" means abuse as defined in section 8‑201 of an individual who is under eighteen years of age.

3. "Exploitation" has the same meaning prescribed in section 46-451.

4. "Neglect" has the same meaning prescribed in section 46-451.

5. "Vulnerable adult" has the same meaning prescribed in section 46‑451. END_STATUTE

START_STATUTE14-5317. Notice to family members of adult ward's hospitalization or death; definition

A. A GUARDIAN SHALL NOTIFY THE FAMILY MEMBERS OF AN ADULT WARD IF EITHER OF THE FOLLOWING OCCURS:

1. THE ADULT WARD IS ADMITTED TO A HOSPITAL FOR A PERIOD OF MORE THAN THREE DAYS.

2. THE ADULT WARD DIES. THIS NOTIFICATION SHALL INCLUDE INFORMATION ABOUT ANY KNOWN FUNERAL ARRANGEMENTS AND THE PLACE OF BURIAL.

B. FOR PURPOSES OF THIS SECTION, "FAMILY MEMBERS" MEANS:

1. THE FOLLOWING INDIVIDUALS WHO ARE INTERESTED PARTIES OF THE COURT RECORD:

(a) THE ADULT WARD'S SPOUSE.

(b) THE ADULT WARD'S PARENTS.

(d) ALL THE ADULT CHILDREN OF THE ADULT WARD.

(e) IF NO PERSON LISTED UNDER SUBDIVISION (a), (b), (c) or (d) OF THIS PARAGRApH CAN BE NOTIFIED, AT LEAST ONE OF THE ADULT WARD'S CLOSEST ADULT RELATIVES, IF SUCH AN ADULT RELATIVE CAN BE FOUND, OR A PERSON WITH A SIGNIFICANT RELATIONSHIP TO THE WARD.

2. ANY PERSON WHO HAS FILED A DEMAND FOR NOTICE.END_STATUTE

Sec. 7. Effective date

This act is effective from and after December 31, 2016.