ARIZONA HOUSE OF REPRESENTATIVES

Fifty-fifth Legislature

First Regular Session

Senate: HHS DPA 7-0-1-0 | 3rd Read 28-0-2-0

SB 1417: health care directives; contact orders

Sponsor:  Senator Barto, LD 15

Committee on Health & Human Services

Overview

Outlines contact requirements and prohibitions for agents and persons who have a significant relationship to a principal of a health care directive.

History

An agent is an adult who has the authority to make health care treatment decisions for another person, referred as the principal, pursuant to a health care power of attorney. The principal is the person who is the subject of a health care power of attorney. A health care directive is a document drafted in compliance with statutory requirements, including a mental health care power of attorney, to deal with a person's future health care decisions (A.R.S. 36-3201).

An adult can designate another adult or other adult individuals to make health care decisions on that person's behalf or to provide funeral and disposition arrangements in the event of the person's death by executing a written health care power of attorney that meets the following requirements: 1) contains language that clearly indicates that the person intends to create a health care power of attorney; 2) is dated and signed or marked by the principal; and 3) is notarized and witnessed in writing by an adult affirming the notary or witness was present (A.R.S. § 36-3221).

Provisions

Agents

1.   ☐ Prop 105 (45 votes) ☐ Prop 108 (40 votes) ☐ Emergency (40 votes) ☐ Fiscal NoteRequires an agent appointed under a health care directive to encourage and allow contact between the principal and other people who have a significant relationship with the principal, unless inconsistent with the express directions of the principal in a health care directive (Sec. 1)

2.   Permits an agent to limit, restrict or prohibit contact between the principal and any person if the agent believes the contact will be detrimental to the principal's health, safety or welfare. (Sec. 1)

3.   Directs the agent to consider the principal's wishes if the principal has sufficient mental capacity to make an intelligent choice. (Sec. 1)

Petitioning the Court for Contact

4.   Allows a person who has a significant relationship with the principal to petition the court for an order compelling the agent to allow the person to have contact with the principal. (Sec. 1)

5.   Stipulates that 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. (Sec. 1)

6.   Enables a principal to petition the court for an order compelling the agent to allow the principal to have contact with a person who has a significant relationship with the principal. (Sec. 1)

7.   Specifies that a petition must describe the nature of the relationship between the person and the principal and the type and frequency of contact being requested. (Sec. 1)

8.   Asserts 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. (Sec. 1)

Court Consideration of Petition for Contact

9.   Stipulates that in determining contact between a person and the principal is in the principal's best interest, the court must consider all factors relevant to the principal's physical and emotional well-being, including:

a)   The past and present relationship between the principal and the person with whom contact is requested;

b)   The wishes of the principal, if the principal has sufficient mental capacity to make an intelligent choice;

c)   The mental and physical health of the principal and the person with whom contact is requested;

d)   Whether the person with whom contact is requested has committed an act involving domestic violence, child abuse, abuse or neglect or exploitation of a vulnerable adult;

e)   Whether the person with whom contact is requested has abused drugs or alcohol or has been convicted of specified drug offenses or driving under the influence;

f) Whether the person with whom contact is requested is listed in the Elder Abuse Central Registry or is a registered sex offender; and

g)   Whether the person with whom contact is requested has been convicted of making a false report of child abuse or neglect or vulnerable adult abuse or neglect. (Sec. 1)

10.  Permits, on the filing of a petition, the court to:

a)   Appoint an attorney or guardian ad litem for the principal if it appears that is in the principal's best interest;

b)   Appoint an investigator or a physician, or both, to evaluate the principal and submit a written report to the court before the hearing;

c)   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. (Sec. 1)

Petitioning and Filing a Motion to Modify a Contact Order

11.  Grants an agent, a court-appointed fiduciary for the principal or a person who has a significant relationship with the principal the ability to do the following if a material change in circumstances affecting the principal's health, safety or welfare has occurred since the last contact order was made:

a)   petition the court to modify a contact order; and

b)   file a motion asking the court to temporarily modify or suspend a contact order. (Sec. 1)

12.  Requires a petition to be supported by an affidavit alleging the change of circumstances that has occurred since the entry of the last contact order. (Sec. 1)

13.  Directs the court to deny a petition unless the court finds that the petition establishes good cause for a hearing, in which case the court must set a hearing on the petition. (Sec. 1)

14.  Requires a petition and notice of the hearing on the petition to be served on all people to whom notice is required and on any court-appointed fiduciary for the principal. (Sec. 1)

15.  States the motion must be filed contemporaneously with or after the filing of a petition to modify the prior contact order. (Sec. 1)

16.  Requires the motion to state whether the petitioner requests that the prior contact order be modified or suspended with or without notice to affected people. (Sec. 1)

Modifying or Suspending a Contact Order

17.  Allows the court to temporarily modify or suspend a contact order without notice only if:

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

b)   The moving party or the moving party's attorney certifies to the court in writing the efforts, if any, that were made to give the notice or the reasons supporting the claim that notice should be required. (Sec. 1)

18.  Requires the court to set a hearing if the court grants a motion to temporarily modify or suspend a contact order without notice. (Sec. 1)

19.  States an order that is temporarily modifying or suspending a contact order and is granted without notice must state the injury, loss or damage that would have likely occurred if the order was not issued before giving the affected people the opportunity to be heard in opposition. (Sec. 1)

20.  Asserts 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. (Sec. 1)

21.  Instructs the moving party to 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. (Sec. 1)

22.  Requires the moving party to have a copy of the order served on any court-appointed fiduciary for the principal and all people affected by the order as soon as practicable after issuance of the order. (Sec. 1)

Miscellaneous

23.  Permits the court, on notice and a hearing, to enter appropriate orders to safeguard the wishes of the principal if those wishes can be reasonably ascertained. (Sec. 1)

24.  Allows the court to 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. (Sec. 1)

25.  Defines abuse, child abuse, exploitation and neglect. (Sec. 1)

26.   

27.   

28.  ---------- DOCUMENT FOOTER ---------

29.                    SB 1417

30.  Initials EB/IR         Page 0 Health & Human Services

31.   

32.  ---------- DOCUMENT FOOTER ---------