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ARIZONA STATE SENATE
Fifty-Fifth Legislature, First Regular Session
supported decision-making; supporter obligations
Purpose
Allows an adult with a disability to enter into a supported decision-making agreement with a supporter. Outlines agreement requirements.
Background
Statute allows the court to appoint a general or limited guardian as requested if the court finds by clear and convincing evidence that: 1) the person for whom a guardian is sought is incapacitated; 2) the appointment is necessary to provide for the demonstrated needs of the incapacitated person; and 3) the person's needs cannot be met by less restrictive means, including the use of appropriate technological assistance (A.R.S. § 14-5304). Statute defines 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).
A durable power of attorney is a written instrument by which a principal designates another person as the principal's agent. Statute requires the instrument to contain words that demonstrate the principal's intent that the authority conferred in the durable power of attorney may be exercised: 1) if the principal is subsequently a person with a disability or incapacitated; and 2) regardless of how much time has elapsed, unless the instrument states a definite termination time (A.R.S. § 14-5501).
Statute defines governing instrument as a deed, will, trust, insurance or annuity policy, account with pay on death designation, security registered in beneficiary form, pension, profit sharing, retirement or similar benefit plan, instrument creating or exercising a power of appointment or power of attorney or a dispositive, appointive or nominative instrument of any similar type (A.R.S. § 14-1201).
There is no anticipated fiscal impact to the state General Fund associated with this legislation.
Provisions
1. Allows an adult, without undue influence or coercion, to enter into a supported decision-making agreement with a supporter under which the adult authorizes the supporter to:
a) provide supported decision-making, including assisting the adult in understanding the options, responsibilities and consequences of the adult's life decisions, without making those decisions on behalf of the adult;
b) assist the adult in accessing, collecting and obtaining from any person, as well as understanding, information that is relevant to a given life decision, including medical, psychological, financial, education or treatment records;
c) assist the adult in understanding such information; and
d) assist the adult in communicating the adult's decisions to appropriate persons.
2. Defines adult as an individual with a disability who is at least 18 years old.
3. Requires the supported decision-making agreement to:
a) set forth the rights, roles, duties, limitations and obligations of both the adult and the supporter who are entering into the agreement;
b) be signed by the adult and the supporter in the presence of two or more subscribing witnesses, who must be at least 18 years old, or a notary public; and
c) be in substantially the form established in statute.
4. Prohibits a supporter from receiving compensation as a result of the supporter's duties under a supported decision-making agreement.
5. Allows an interested person to file a verified petition with the superior court to determine the validity of the supported decision-making agreement.
6. Stipulates that a supporter is not a surrogate decision-maker for the adult and does not have the authority to sign legal documents on behalf of the adult.
7. Stipulates that a supported decision-making agreement extends until:
a) terminated in writing by either party or by the terms of the supported decision-making agreement;
b) the adult becomes an incapacitated person; or
c) the appointment of a guardian pursuant to statutes regarding protection of persons under disability and their property.
8. Requires the supporter to act without self-interest and avoid conflicts of interest.
9. Defines disability as a physical or mental impairment that substantially limits one or more major life activities.
10. Defines interested person as any person who is interested in the affairs or welfare of an adult who has entered into a supported decision-making agreement.
11. Defines intimidate as threatening to deprive an adult of food, nutrition, shelter or necessary medication or medical treatment.
12. Defines supported decision-making as a process of supporting and accommodating an adult to enable the adult to make life decisions, including decisions related to where the adult wants to live, the services, support and medical care the adult wants to receive, whom the adult wants to live with and where the adult wants to work, without impeding the adult's self-determination.
13. Defines supported decision-making agreement as an agreement between an adult and a supporter that follows statutory guidance.
14. Defines supporter as a person who is at least 18 years old and who enters into a supported decision-making agreement with an adult.
15. Adds supported decision-making agreement to the definition of governing instrument.
16. Makes a technical change.
17. Becomes effective on January 1, 2022.
House Action
JUD 2/17/21 DP 9-0-0-0
3rd Read 2/24/21 59-0-1
Prepared by Senate Research
March 9, 2021
JA/RC/gs