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ARIZONA STATE SENATE
Fifty-Fifth Legislature, First Regular Session
AMENDED
health care directives; contact orders
Purpose
Establishes contact requirements and restrictions for agents and individuals who have a significant relationship to the principal of a health care directive (principal). Permits an individual who has a significant relationship with the principal to petition the court for an order to compel an agent to allow contact with the principal.
Background
A health care directive
is a document, such as a living will or mental health care power of attorney,
that is drafted to deal with a person's future health care decisions. Statute
allows an individual to execute a prehospital medical care directive that, in
the event of cardiac or respiratory arrest, directs emergency medical system
personnel, hospital emergency department personnel and direct care staff to
withhold cardiopulmonary resuscitation (CPR). CPR includes: 1) cardiac compression;
2) endotracheal intubation; 3) artificial ventilation; 4) defibration; 5) administration
of advanced cardiac life support drugs; and 6) any other advanced airway
management (A.R.S.
§ 36-3251).
An agent, as the term relates to health care directives, is an adult who has the authority to make health care treatment decisions for another person, referred to as the principal, pursuant to a health care power of attorney. Any adult is permitted to designate another adult as their agent who is authorized 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 specified criteria (A.R.S. § 36-3221).
There is no anticipated fiscal impact to the state General Fund associated with this legislation.
Provisions
1. Requires an agent to encourage and allow contact between the principal and other individuals who have a significant relationship with the principal, unless such contact is inconsistent with the express direction of the principal.
2. Precludes an agent from limiting, restricting or prohibiting reasonable contact between the principal and another individual without prior court approval, unless such authority is granted to the agent by the principal in a health care directive.
3. Allows 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, to petition the court for an order to compel the agent to allow the person to have contact with the principal.
4. Requires that a petition and notice of the petition hearing be personally served on the principal and the agent in addition to any other person ordered by the court.
5. Allows a principal, whose contact with a person who has a significant relationship with the principal has been limited, restricted or prohibited by an agent, to petition the court for an order to compel the agent to allow the principal to have contact with the person.
6. Requires that a petition and notice of the petition hearing be personally served on the agent and the person whose contact will be affected in addition to any other person ordered by the court.
7. Places the burden of proving the existence of a significant relationship with the principal and that the contact is in the principal's best interest on the petitioning party.
8. Requires that a petition to compel contact includes a description of the relationship between the petitioner and the principal and the frequency and type of contact being requested.
9. Permits an agent who does not have express authority in a health care directive to restrict, limit or prohibit contact between the principal and another person, and who reasonably believes that such contact is not in the principal's best interest, to petition the court for an order limiting, restricting or prohibiting such contact. A petition must describe:
a) the nature of the relationship between the person and the principal;
b) the limitations or restrictions on the contact being requested; and
c) why the limitations or restrictions are in the principal's best interest.
10. Requires an agent to file a written statement or report with the court from a specified health professional who has recently evaluated the principal and who supports the agent's request to prohibit contact, if an agent requests an order prohibiting all contact between a person and the principal because the contact would be detrimental to the principal's emotional or physical health or well-being.
11. Requires that a petition and notice of the petition hearing be personally served on the principal and the person whose contact will be affected in addition to any other person ordered by the court.
12. Directs the court, when determining if any contact between a person and the principal is in the principal's best interest, to consider all factors that are relevant to the principal's health, safety and welfare, including:
a) the past and present relationship between the principal and the person whose contact is being considered;
b) the wishes of the principal, if they have sufficient mental capacity;
c) the mental and physical health of the principal and the person whose contact is being considered; and
d) whether the person whose contact is being considered:
i. has committed specified criminal acts or offenses;
ii. has abused drugs or alcohol; or
iii. is included or required to be included in the Elder Abuse Central Registry.
13. Requires the court, on the filing of a petition to compel an agent to allow contact, to appoint an attorney, guardian ad litem, or both, for the principal.
14. Authorizes the court, on the filing of a petition to compel an agent to allow contact, to:
a) appoint an investigator, a physician, or both, to evaluate the principal and submit a written report to the court before the hearing; and
b) enter any temporary order as determined necessary and appropriate by the court to protect the wishes or best interests of the principal, including orders to exercise the powers of or to appoint a guardian; and
c) issue, without notice, a temporary protective order that limits, restricts or prohibits contact between the principal and another person if:
i. the petition is supported by written documentation from a physician, psychologist, physician assistant or registered nurse who has recently evaluated the principal; and
ii. the court finds reasonable grounds to believe that contact between the principal and the person before the matter can be heard would result in the immediate and irreparable injury, loss or damage to the principal, based on the health professional's statement or report and other specific facts shown by affidavit or verified petition.
15. Stipulates that a temporary protective order expires on the date prescribed by the court but no later than 14 days after the order is entered, unless within that time the court extends the order for good cause or the person whose contacted is being affected consents to the extension.
16. Obligates the court, if a temporary protective order is issued, to 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 no more than 72 hours after entry of the order.
17. Permits the principal or person whose contact has been limited, restricted or prohibited to file a motion requesting that a temporary protective order issued by the court without notice be dissolved or modified.
18. Requires the person filing the motion to cause a copy of the motion to be personally served on the agent and any other person the court orders.
19. Directs the court to hear and determine the motion as expeditiously as possible.
20. Obligates a petitioner to provide notice of the time and place of the hearing regarding a petition at least 14 days before the hearing.
21. Stipulates that petitions are required to be heard and determined as formal proceedings as outlined under trusts, estates and protective proceedings regulations and governed by the rules of probate procedure, unless inconsistent with prescribed standards and procedures.
22. Permits a principal, an agent or a person who has a significant relationship with the principal to do the following, if a material change in circumstances regarding the principal's health, safety or welfare occurred since the order was entered:
a) petition the court to modify a contact order; or
b) file a motion to temporarily modify or suspend a contact order.
23. Establishes that a petition or motion to modify, temporarily modify or suspend a contact order must be supported by an affidavit alleging the change of circumstances that occurred since the order was entered.
24. Specifies that a motion to temporarily modify or suspend a contact order must be contemporaneously filed with or after a petition to modify a prior contact order.
25. Requires that a motion to temporarily modify or suspend a contact order includes a statement regarding whether the petitioner requests that the prior contact order be modified or suspended without notice to affected parties.
26. Requires the court to deny a petition to modify a contact order unless the court finds that the petition establishes good cause for a hearing.
27. Directs the court to set a hearing if good cause is established and to serve notice of the petition hearing on the principal, the agent, the person whose contact is being considered and any other person the court orders.
28. Authorizes the court to temporarily modify or suspend a contact order without notice 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 prior to the affected individuals being heard in opposition; or
b) the moving party or their attorney certifies the efforts made to provide notice or the reasons supporting the claim that the notice should not be required.
29. Directs the court to set a hearing on a motion if the court grants a motion to temporarily modify or suspend a contact order without notice.
30. Requires that an order to temporarily modify or suspend a contact order that is granted without notice states the injury, loss or damage that would likely occur if the order was not issued prior to giving the affected individuals the opportunity to be heard in opposition.
31. Expires a temporary order at the time and date set for the hearing on the motion unless the order is extended by the court for good cause.
32. Obligates the moving party to personally serve a copy of the order and notice of the hearing on:
a) the person whose contact with the principal is being modified or suspended without notice within the time period the court directs but no more than 72 hours after entry of the order; and
b) the principal or agent if either is not the moving party.
33. Authorizes the court to order alternative dispute resolution, including mediation, in a proceeding.
34. Allows the court, upon notice and hearing, to enter orders to assess court costs, reasonable attorney fees and the cost of any appointed evaluating professionals.
35. Defines relevant terms.
36. Becomes effective on the general effective date.
Amendments Adopted by Committee
1. Clarifies that encouragement and permissibility of contact must be consistent with a principal's express directions.
2. Allows the court to appoint a guardian ad litem if it is in a principal's best interest.
3. Eliminates proposed language permitting the court to specified orders.
Amendments Adopted by the House of Representatives
1. Prohibits an agent from limiting or restricting reasonable contact between the principal and another individual without court approval, unless such authority is otherwise granted in a health care directive.
2. Prescribes petition service and hearing notification requirements.
3. Requires, rather than allows, the court to appoint an attorney, guardian ad litem, or both, upon the filing of a petition regarding contact with a principal.
4. Permits the court to order temporary protective orders restricting or prohibiting contact between a principal and another person as outlined and under certain conditions.
5. Outlines requirements regarding motions to modify or dissolve temporary protective orders issued by the court.
6. Further defines relevant terms.
7. Makes conforming changes.
Senate Action House Action
HHS 2/18/21 DPA 7-0-1 HHS 3/22/21 DP 7-1-1
3rd Read 3/01/21 28-0-2 3rd Read 5/13/21 59-0-1
Prepared by Senate Research
May 14, 2021
CRS/kja