 |
ARIZONA STATE SENATE
Fifty-Fifth Legislature, First Regular Session
AMENDED
incapacitated person; special investigator
Purpose
Allows the court to appoint a guardian ad litem to investigate a person's need for a guardian, conservator or both in a proceeding relating to marital or domestic relations.
Background
Statute defines an incapacitated person as 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 the person lacks sufficient understanding or capacity to make or communicate responsible decisions concerning the person's self (A.R.S. § 14-5101).
Statute allows the court, on petition and after notice and a hearing, to appoint a conservator or make another protective order for cause: 1) in relation to the estate and affairs of a minor if the court determines that a minor owns money or property that requires management or protection that cannot otherwise be provided or has or may have affairs that may be jeopardized or prevented by minority or that funds are needed for the minor's support and education and that protection is necessary or desirable to obtain or provide funds; or 2) in relation to the estate and affairs of a person. The court may only appoint a conservator or make another protective order for cause in relation to the second criteria if the court specifically finds on the record that the person: 1) is unable to manage the person's estate and affairs effectively for reasons such as mental illness, mental deficiency, mental disorder, physical illness or disability, chronic use of drugs, chronic intoxication, confinement, detention by a foreign power or disappearance; and 2) has property that will be wasted or dissipated unless proper management is provided, or that funds are needed for the support, care and welfare of the person or those entitled to be supported by the person and that protection is necessary or desirable to obtain or provide funds (A.R.S. § 14-5401).
There is no anticipated fiscal impact to the state General Fund associated with this legislation.
Provisions
1. Allows the court to appoint a guardian ad litem to conduct an investigation concerning the need for a guardian, conservator or both in a proceeding relating to marital or domestic relations if:
a) the court finds that there is reasonable cause to believe that an adult party is or may be an incapacitated person or is a person in need of protection; and
b) the party is or may be in need of guardianship, conservatorship or both.
2. Allows the court to order an independent evaluation by a licensed physician who is competent to perform the evaluation if:
a) it is deemed necessary to adequately assess the capacity of an adult party to a pending proceeding regarding marital or domestic relations; and
b) the special investigator or court has made a request for the evaluation.
3. Allows a guardian ad litem to, if deemed appropriate after conducting an investigation, initiate and prosecute proceedings relating to protection of persons under disability and their property for the appointment of a guardian, a conservator, or both.
4. Allows a court-appointed guardian ad litem and any court-designated evaluator to receive reasonable compensation.
5. Requires the reasonable fees and costs of the guardian ad litem and any appointed evaluator to be paid by:
a) the person alleged to be incapacitated or in need of protection; or
b) an appropriate available marital community property fund or asset.
6. Allows the court to order the county to pay all or part of the fees or costs of a guardian ad litem or evaluator that are reasonable if:
a) the court determines that the person who is alleged to be incapacitated or in need of protection has insufficient monies to pay the total cost; and
b) there are insufficient available community monies or assets to pay the cost.
7. Requires the Arizona Supreme Court to adopt appropriate rules to govern the appointment of a guardian ad litem in proceedings relating to marital or domestic relations.
8. Becomes effective on the general effective date.
Amendments Adopted by Committee
1. Allows a guardian ad litem to, if deemed appropriate after conducting an investigation, initiate and prosecute proceedings relating to protection of persons under disability and their property for the appointment of a guardian, a conservator, or both.
2. Replaces a special investigator with a guardian ad litem and transfers the outlined duties of a special investigator to a guardian ad litem.
Senate Action
JUD 2/18/21 DPA 8-0-0
Prepared by Senate Research
February 19, 2021
JA/RC/kja