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REFERENCE TITLE: public safety guardianships |
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State of Arizona House of Representatives Fifty-fourth Legislature First Regular Session 2019
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HB 2356 |
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Introduced by Representative Barto
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AN ACT
amending section 13‑4517, Arizona Revised Statutes; amending Title 14, Arizona Revised Statutes, by adding chapter 5.1; amending Title 41, chapter 27, article 2, Arizona Revised Statutes, by adding section 41‑3027.02; relating to guardianships.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Section 13-4517, Arizona Revised Statutes, is amended to read:
13-4517. Incompetent defendants; disposition
A. If the court finds that a defendant is incompetent to stand trial and that there is no substantial probability that the defendant will regain competency within twenty‑one months after the date of the original finding of incompetency, any party may request that the court:
1. Remand the defendant to an evaluating agency for the institution of civil commitment proceedings pursuant to title 36, chapter 5. If the defendant is remanded, the prosecutor shall file a petition for evaluation and provide any known criminal history for the defendant.
2. Appoint a guardian Initiate proceedings pursuant to title 14, chapter 5 or chapter 5.1.
3. Release the defendant from custody and dismiss the charges against the defendant without prejudice.
B. If the court enters an order pursuant to subsection A, paragraph 1 or 2 of this section, the court may also order an assessment of the defendant's eligibility for private insurance or public benefits that may be applied to the expenses of the defendant's medically necessary maintenance and treatment, including services pursuant to title 36, chapter 29, state‑only behavioral health services, title xviii services and medicare part D prescription drug benefits, supplemental security income and supplemental security disability income.
C. The court may retain jurisdiction over the defendant until the defendant is committed for treatment pursuant to title 36, chapter 5 or a guardian is appointed pursuant to title 14, chapter 5 or chapter 5.1.
D. If the court remands the defendant for the institution of civil commitment proceedings pursuant to title 36, chapter 5 and the court is notified that the defendant has not had a civil commitment evaluation, the court, if it has retained jurisdiction, may order the sheriff to take the defendant into custody so that the court may explore options pursuant to subsection A, paragraph 2 or 3 of this section.
E. If the court is notified that the defendant has not been ordered into treatment pursuant to title 36, chapter 5 and the court has retained jurisdiction, the court may order the sheriff to take the defendant into custody so that the court may explore options pursuant to subsection A, paragraph 2 or 3 of this section.
F. If the court orders the initiation of proceedings pursuant to title 14, chapter 5 or chapter 5.1, the court may order the sheriff to retain custody of the defendant during that process and may extend this order during the time required to explore options pursuant to subsection A, paragraph 1 or 3 of this section if no guardianship or public safety guardianship is ordered.
Sec. 2. Title 14, Arizona Revised Statutes, is amended by adding chapter 5.1, to read:
CHAPTER 5.1
PUBLIC SAFETY GUARDIANSHIPS
ARTICLE 1. GENERAL PROVISIONS
14-5801. Definitions
In this chapter, unless the context otherwise requires:
1. "Director" means the director of the office.
2. "Incapacitated incompetent person" means a person for whom both of the following are true:
(a) The person is an incapacitated person as defined in section 14‑5101.
(b) The person has been found by the court in a criminal case to be incompetent to stand trial and to have no substantial probability to regain competency within twenty‑one months after the date of the original finding of incompetency.
3. "Office" means the office of public safety guardianships.
4. "Public safety guardianship" means a guardianship ordered pursuant to this chapter.
5. "State hospital" means the Arizona state hospital.
14-5802. Office of public safety guardianships; powers; duties; director; employees; license
A. The office of public safety guardianships is established to initiate and administer GUARDIANSHIPS as provided in this chapter.
B. Notwithstanding any other law, the office has priority over all other persons who seek any form of guardianship for an alleged incapacitated incompetent person.
C. The governor shall appoint the director pursuant to section 38‑211. the director is ELIGIBLE to receive compensation PURSUANT to section 38‑611.
D. Subject to title 41, chapter 4, article 4 and legislative appropriation, the director shall hire employees as necessary to carry out the functions of the office.
E. the director and each office guardianship administrator shall be a licensed fiduciary pursuant to section 14‑5651.
14-5803. Public safety guardianship; procedure; psychiatrist examination
A. If ordered by the court pursuant to section 13‑4517, the office shall prepare and file a petition to initiate proceedings for a public safety guardianship.
B. The procedures for a guardianship pursuant to chapter 5, article 3 of this title apply to proceedings for a public safety guardianship except as otherwise prescribed in this chapter.
C. In addition to the information prescribed by section 14‑5303, subsection B, the petition for a public safety guardianship shall include a summary of the alleged incapacitated incompetent person's current criminal case and relevant past criminal history.
D. after the filing of a petition, a psychiatrist appointed by the court shall examine the alleged incapacitated incompetent person. The psychiatrist shall file a report with the court including the information required in section 14-5303, subsection D and an assessment of whether the alleged incapacitated incompetent person is likely to commit violent acts or cause serious physical harm to another person in the future. The office shall pay the costs of the psychiatrist's report and examination and any costs of a court-appointed investigator.
E. In determining whether to appoint a public safety guardian, the court shall consider the alleged incapacitated incompetent person's welfare and potential to commit violent acts or cause serious physical harm to another person in the future if a public safety guardianship is not ordered.
F. The court may appoint the office as a public safety guardian if the court finds by clear and convincing evidence that all of the following are true:
1. The person for whom a public safety guardianship is sought is incapacitated.
2. The appointment is necessary to provide for the demonstrated needs of the incapacitated person.
3. The person's needs cannot be met by less restrictive means, including the use of appropriate technological assistance.
4. The person is likely to commit violent acts or cause serious physical harm to another person in the future if a public safety guardianship is not ordered.
5. The person will likely be in need of inpatient mental health care and treatment within the period of the public safety guardianship.
G. The alleged incapacitated incompetent person is entitled to assistance of counsel at any proceeding that is conducted pursuant to chapter 5 of this title or this chapter after the office is appointed public safety guardian. If the alleged incapacitated incompetent person is indigent, the court shall appoint counsel to assist the alleged incapacitated incompetent person. The county board of supervisors for the county in which the petition is filed may fix a reasonable amount to be paid by the county for the services of an appointed attorney.
14-5804. Public safety guardian; placement; state hospital program; costs; definition
A. A public safety guardian has all the powers of a guardian pursuant to section 14-5312 and as otherwise provided by law. A Public safety guardian may place the incapacitated incompetent person in inpatient psychiatric facilities licensed by the department of health services as provided in section 14-5312.01 for the duration of the public safety guardianship.
B. The state hospital shall establish a program to treat, house and care for incapacitated incompetent persons for whom a public safety guardian has been appointed. The program shall include inpatient services, outpatient services and housing for those receiving outpatient services. The state hospital shall place a person who is admitted to the program at an appropriate level of care and housing to provide the person with appropriate services and to protect the public from acts committed by an incapacitated incompetent person.
C. On the request of the office and after compliance with section 14-5312.02, the state hospital shall admit an incapacitated incompetent person to the program. The office may withdraw an incapacitated incompetent person from the program if the office determines that the placement is no longer appropriate.
D. If the incapacitated incompetent person has private insurance or public benefits that may be applied to the expenses of admission to the program, the state hospital shall apply these benefits to the costs of the incapacitated incompetent person's admission to the program. If the incapacitated incompetent person does not have these benefits, the state hospital shall bear the costs of the incapacitated incompetent person's admission to the program. During the incapacitated incompetent person's inpatient stay in the program, the office and the state hospital shall take all reasonable steps to facilitate the incapacitated incompetent person's eligibility for and coverage by all available private insurance or public benefits that may be applied to the expenses of admission to the program.
E. For the purposes of this section, "program" means the program prescribed in subsection b of this section.
Sec. 3. Title 41, chapter 27, article 2, Arizona Revised Statutes, is amended by adding section 41-3027.02, to read:
41-3027.02. Office of public safety guardianships; termination July 1, 2027
A. The office of public safety guardianships terminates on July 1, 2027.
B. Title 14, chapter 5.1 and this section are repealed on January 1, 2028.
Sec. 4. Purpose
Pursuant to section 41‑2955, subsection E, Arizona Revised Statutes, the legislature establishes the office of public safety guardianships to promote the protection and treatment of incapacitated incompetent persons and to protect the public from potential acts committed by these persons.