36-3211. Principals; significant relationships; contact orders; definitions

A. Unless inconsistent with the express directions of the principal in a health care directive, an agent shall encourage and allow contact between the principal and other persons who have a significant relationship with the principal.

B. An agent may not limit, restrict or prohibit reasonable contact between the principal and any other person without prior court approval, unless the principal has granted the agent such authority in a health care directive.

C. A person who has a significant relationship with the principal and whose contact with the principal has been limited, restricted or prohibited by an agent may petition the court for an order compelling the agent to allow the person to have contact with the principal. The petition shall describe the nature of the relationship between the person and the principal 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 principal and that the requested contact is in the principal's best interest.  The petition and notice of the hearing on the petition shall be personally served on the principal and the agent and shall be provided to any other persons the court orders.

D. A principal whose contact with a person who has a significant relationship with the principal has been limited, restricted or prohibited by an agent may petition the court for an order compelling the agent to allow the principal to have contact with the person.  The petition shall describe the nature of the relationship between the person and the principal and the type and frequency of contact being requested. The principal has the burden of proving that the person has a significant relationship with the principal and that the requested contact is in the principal's best interest.  The petition and notice of the hearing on the petition shall be personally served on the agent and the person whose contact will be affected and shall be provided to any other persons the court orders.

E. If an agent who does not have authority expressly granted in a health care directive to limit, restrict or prohibit contact between the principal and another person reasonably believes that contact between the principal and the person is not in the principal's best interest, the agent may petition the court for an order that limits, restricts or prohibits contact between the person and the principal.  The petition shall describe the nature of the relationship between the person and the principal and the limitations or restrictions on the contact being requested and why the limitations or restrictions are in the principal's best interest.  If the agent requests an order that prohibits all contact between a person and the principal because the contact would be detrimental to the principal's physical or emotional health or well-being, the agent shall file with the court a written statement or report of a physician, psychologist, physician assistant or registered nurse who has recently evaluated the principal and who supports this position. The petition and notice of the hearing on the petition shall be personally served on the principal and the person whose contact will be affected and shall be provided to any other persons the court orders.

F. In determining what, if any, contact between a person and the principal is in the principal's best interest, the court shall consider all factors that are relevant to the principal's health, safety and welfare, including the following:

1. The past and present relationship between the principal and the person whose contact is being considered.

2. If the principal has sufficient mental capacity to make an intelligent choice, the wishes of the principal.

3. The mental and physical health of the principal and the person whose contact is being considered.

4. Whether the person whose contact is being considered has committed any of the following:

(a) Act involving domestic violence as defined in section 13-3601.

(b) Child abuse.

(c) Abuse, neglect or exploitation of a vulnerable adult.

5. Whether the person whose contact is being considered 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 whose contact is being considered 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 whose contact is being considered has been convicted of a violation of section 13-2907.02 or 13-2907.04.

G. On the filing of a petition under this section, the court:

1. Shall appoint an attorney or guardian ad litem, or both for the principal.

2. May appoint an investigator as provided under section 14-5308 or a physician, or both, to evaluate the principal and submit a written report to the court before the hearing.

3. May enter any other temporary order that the court determines is necessary and appropriate to protect the wishes or best interests of the principal, including an order exercising the power of a guardian or appointing a temporary guardian as provided under section 14-5310.

4. May issue, without notice, a temporary protective order that limits, restricts or prohibits contact between the principal and another person if the petition is supported by a written statement or report of a physician, psychologist, physician assistant or registered nurse who has recently evaluated the principal and the court finds, based on the statement or report and other specific facts shown by affidavit or verified petition, reasonable grounds to believe that contact between the principal and the person before the matter can be heard would result in immediate and irreparable injury, loss or damage to the principal.  The temporary protective order expires on the date prescribed by the court but not later than fourteen days after the order is entered, unless within that time the court extends the order for good cause shown or the person whose contact is limited, restricted or prohibited consents to the extension.  If the temporary protective order is issued, the court shall require that the petition and order be personally served on the principal and the person whose contact is the subject of the order within the time ordered by the court but not more than seventy-two hours after entry of the order.  If the court issues a temporary protective order without notice, the principal or the person whose contact has been limited, restricted or prohibited may file a motion requesting that the order be dissolved or modified.  The person filing the motion shall cause a copy of the motion to be personally served on the agent and any other person the court orders.  The court shall proceed to hear and determine the motion as expeditiously as possible.

H. Except as provided in subsection G, paragraph 4 of this section, the petitioner shall cause notice of the time and place of hearing of any petition filed under this section to be given at least fourteen days before the hearing.

I. Unless inconsistent with the standards and procedures set forth in this section, a petition filed under this section shall be heard and determined as a formal proceeding filed under title 14 and governed by the rules of probate procedure.

J. A principal, an agent or a person who has a significant relationship with the principal may petition the court to modify a contact order if a material change in circumstances affecting the principal's health, safety or welfare has occurred since the last contact order was entered.  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 a 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 the principal, the agent and the person whose contact is being considered and shall be provided to any other persons the court orders.

K. A principal, an agent or a person who has a significant relationship with the principal may file a motion asking the court to temporarily modify or suspend a contact order if a material change in circumstances affecting the principal's health, safety or welfare has occurred since the last contact order was entered.  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.

L. The court may temporarily modify or suspend a contact order without notice only if both of the following apply:

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

M. 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.

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

O. The moving party shall personally serve a copy of the order and notice of the hearing on the person whose contact with the principal has been modified or suspended without notice within the time period the court directs but not more than seventy-two hours after entry of the order.  The moving party shall personally serve a copy of the order and notice of hearing on the principal or the agent if either person is not the moving party.

P. On notice and a hearing, the court may enter appropriate orders to safeguard the wishes of the principal if those wishes can be reasonably ascertained. The court may assess court costs, reasonable attorney fees and the cost of any professionals appointed to evaluate the principal against a party found to have proceeded in bad faith or to have acted unreasonably.

Q. In a proceeding brought pursuant to this section, the court may order alternative dispute resolution, including mediation.

R. 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. "Contact" includes communications through any method, including in person, in writing and by electronic methods.

4. "Court" means the superior court.

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

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