SB1291 - 561R

Be it enacted by the Legislature of the State of Arizona:

Section 1. Section 14-5309, Arizona Revised Statutes, is amended to read:

START_STATUTE14-5309. Notices in guardianship proceedings

A. In a proceeding for a contact order or modification of a contact order pursuant to section 14-5316 or for the appointment or substitution of a guardian of a ward or an alleged incapacitated person other than the appointment of a temporary guardian or temporary suspension of a guardian, notice of a hearing shall be given to each of the following:

1. The ward or the alleged incapacitated person and that person's spouse, parents and adult children.

2. Any person who is serving as guardian or conservator or who has the care and custody of the ward or the alleged incapacitated person.

3. In case no other person is notified under paragraph 1 of this subsection, at least one of that person's closest adult relatives, if any can be found.

4. Any person who has filed a demand for notice.

B. At least fourteen days before the hearing notice shall be served personally on the ward or the alleged incapacitated person and that person's spouse and parents if they can be found within the state. Notice to the spouse and parents, if they cannot be found within the state, and to all other persons except the ward or the alleged incapacitated person shall be given as provided in section 14-1401 all persons listed in subsection a of this section. Waiver of notice by the ward or the alleged incapacitated person is not effective unless that person attends the hearing. END_STATUTE

Sec. 2. Section 14-5311, Arizona Revised Statutes, is amended to read:

START_STATUTE14-5311. Who may be guardian; priorities

A. Any qualified person may be appointed guardian of an incapacitated person, subject to the requirements of section 14-5106.

B. The court may consider the following persons for appointment as guardian in the following order:

1. The person nominated to serve as guardian in the incapacitated person's most recent durable power of attorney or health care power of attorney.

1. 2. A guardian or conservator of the person or a fiduciary appointed or recognized by the appropriate court of any jurisdiction in which the incapacitated person resides.

2. 3. An individual or corporation nominated by the incapacitated person if the person has, in the opinion of the court, sufficient mental capacity to make an intelligent choice.

3. The person nominated to serve as guardian in the incapacitated person's most recent durable power of attorney or health care power of attorney.

4. The spouse of the incapacitated person.

5. An adult child of the incapacitated person.

6. A parent of the incapacitated person, including a person nominated by will or other writing signed by a deceased parent.

7. Any relative of the incapacitated person with whom the incapacitated person has resided for more than six months before the filing of the petition.

8. The nominee of a person who is caring for or paying benefits to the incapacitated person.

9. If the incapacitated person is a veteran, the spouse of a veteran or the minor child of a veteran, the department of veterans' services.

10. A fiduciary who is licensed pursuant to section 14-5651, other than a public fiduciary.

11. A public fiduciary who is licensed pursuant to section 14-5651.

C. A person listed in subsection B, paragraph 4, 5, 6, 7 or 8 of this section may nominate in writing a person to serve in that person's place. With respect to persons who have equal priority, the court shall select the one person the court determines is best qualified to serve.

D. Notwithstanding the priorities set forth in subsection B of this section, if the petition for appointment of a guardian for the incapacitated person is filed pursuant to section 14-5301.03 or within two years after the incapacitated person's eighteenth birthday, unless the court finds the appointment to be contrary to the incapacitated person's best interest:

1. The court shall appoint as the incapacitated person's guardian any person who, by court order, had sole legal decision-making of the incapacitated person when the incapacitated person attained eighteen years of age.

2. If two persons had joint legal decision-making of the incapacitated person when the incapacitated person attained eighteen years of age, the court shall appoint both persons as the incapacitated person's co-guardians coguardians.

E. The court may appoint more than one person as the incapacitated person's co-guardians coguardians if the appointment is required by subsection D of this section or the court finds that the appointment is in the incapacitated person's best interest. If the court appoints co-guardians coguardians, the co-guardians coguardians shall share decision-making for the incapacitated person and neither co-guardian's coguardian's rights or responsibilities are superior except as otherwise ordered by the court.

F. For good cause the court may pass over a person who has priority and appoint a person who has a lower priority or no priority. For the purposes of this subsection, "good cause" includes a determination that:

1. The incapacitated person's durable power of attorney or health care power of attorney is invalid.

2. Honoring the incapacitated person's durable power of attorney or health care power of attorney would not be in the physical, emotional or financial best interest of the incapacitated person.

3. The estimated cost of the fiduciary and associated professional fees would adversely affect the ability of the incapacitated person's estate to provide for the incapacitated person's reasonable and necessary living expenses.

G. On a request by a person who was passed over by the court pursuant to subsection F of this section, the court shall make a specific finding regarding the court's determination of good cause and why the person was not appointed. The request must be made within ten days after the entry of the order. END_STATUTE

Sec. 3. Section 14-5316, Arizona Revised Statutes, is amended to read:

START_STATUTE14-5316. Maintaining ward's relationships; contact orders; definitions

A. A guardian shall encourage and allow contact between the ward and other persons who have a significant relationship with the ward.

B. Notwithstanding subsection A of this section, a guardian may limit, restrict or prohibit contact between the ward and any person if the guardian reasonably believes can demonstrate through clear and convincing evidence that the contact will be detrimental to the ward's health, safety or welfare.

C. In exercising the guardian's powers pursuant to subsections A and B of this section, the guardian shall consider the wishes of the ward, if the ward has sufficient mental capacity to make an intelligent choice.

D. A person who has a significant relationship to the ward may petition the court for an order compelling the guardian to allow the person to have contact with the ward. The petition shall describe the nature of the relationship between the person and the ward and the type and frequency of contact being requested. The person has the burden of proving that the person has a significant relationship with the ward and that the requested contact is in the ward's best interest.

E. A ward may petition the court for an order compelling the guardian to allow the ward to have contact with a person who has a significant relationship to the ward. The petition shall describe the nature of the relationship between the person and the ward and the type and frequency of contact being requested. The ward has the burden of proving that the person has a significant relationship with the ward and that the requested contact is in the ward's best interest.

F. In determining what, if any, contact between the person and the ward is in the ward's best interest, the court shall consider all factors that are relevant to the ward's physical and emotional well-being, including the following:

1. The past and present relationship between the ward and the person with whom the contact is requested.

2. The wishes of the ward if the ward has sufficient mental capacity to make an intelligent choice.

3. The mental and physical health of the ward and the person with whom the contact is requested.

4. Whether the person with whom the contact is requested has committed any act involving domestic violence as defined in section 13-3601, child abuse or abuse, neglect or exploitation of a vulnerable adult.

5. Whether the person with whom the contact is requested has abused drugs or alcohol or has been convicted of any drug offense listed in title 13, chapter 34 or a violation of title 28, chapter 4, article 3.

6. Whether the person with whom the contact is requested is listed in the elder abuse central registry pursuant to section 46-457 or is required to register pursuant to section 13-3821.

7. Whether the person with whom the contact is requested has been convicted of a violation of section 13-2907.02 or 13-2907.04.

G. If the petition for contact is filed pursuant to section 14-5301.03 or within two years after the ward's eighteenth birthday, any contact with the ward authorized in the most recent parenting time or visitation order shall be presumed to be in the ward's best interests, but the presumption may be rebutted by evidence showing that the contact authorized in the most recent parenting time or visitation order is no longer in the ward's best interests.

H. A court-appointed fiduciary for the ward or a person who has a significant relationship to the ward may petition the court to modify a contact order, if a material change in circumstances affecting the ward's health, safety or welfare has occurred since the last contact order was made. The petition shall be supported by an affidavit alleging the change of circumstances that has occurred since the entry of the last contact order. The court shall deny the petition unless the court finds that the petition establishes good cause for hearing, in which case the court shall set a hearing on the petition. The petition and notice of the hearing on the petition shall be served on all persons to whom notice is required pursuant to section 14-5309 and on any court-appointed fiduciary for the ward.

I. A court-appointed fiduciary for the ward or a person who has a significant relationship to the ward may file a motion asking the court to temporarily modify or suspend a contact order, if a material change in circumstances affecting the ward's health, safety or welfare has occurred since the last contact order was made. The motion shall be supported by an affidavit alleging the change of circumstances that has occurred since the entry of the last contact order. The motion shall be filed contemporaneously with or after the filing of a petition to modify the prior contact order. The motion shall state whether the petitioner requests that the prior contact order be modified or suspended with or without notice to affected persons.

J. The court may temporarily modify or suspend a contact order without notice only if both of the following conditions are met:

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

2. The moving party or the party's attorney certifies to the court in writing the efforts, if any, that the moving party or the party's attorney has made to give the notice or the reasons supporting the claim that notice should not be required.

K. If the court grants a motion to temporarily modify or suspend a contact order without notice, the court shall set a hearing on the motion.

L. An order temporarily modifying or suspending a contact order that is granted without notice shall state the injury, loss or damage that would have been likely to occur if the order were not issued before giving the affected persons the opportunity to be heard in opposition. The temporary order shall expire at the date and time set for the hearing on the motion unless the temporary order is extended by the court for good cause.

M. The moving party shall personally serve the person whose contact with the ward has been modified or suspended with a copy of the order and notice of the hearing. The moving party shall have served a copy of the order on any court-appointed fiduciary for the ward and all persons affected by the order as soon as practicable after issuance of the order in the manner prescribed in section 14-5309 or as otherwise ordered by the court.

N. For the purposes of this section:

1. "Abuse" in relation to a vulnerable adult has the same meaning prescribed in section 46-451.

2. "Child abuse" means abuse as defined in section 8-201 of an individual who is under eighteen years of age.

3. "Exploitation" has the same meaning prescribed in section 46-451.

4. "Neglect" has the same meaning prescribed in section 46-451.

5. "Vulnerable adult" has the same meaning prescribed in section 46-451. END_STATUTE

Sec. 4. Section 14-5401, Arizona Revised Statutes, is amended to read:

START_STATUTE14-5401. Protective proceedings; fingerprinting

A. On petition and after notice and a hearing pursuant to this article, the court may appoint a conservator or make another protective order for cause if the court finds by clear and convincing evidence as follows:

1. Appointment of a conservator or other protective order may be made 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.

2. Appointment of a conservator or other protective order may be made in relation to the estate and affairs of a person if the court specifically finds on the record both of the following:

(a) The person 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.

(b) The person 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.

B. On petition and after notice and a hearing pursuant to this article, the court may continue a conservatorship or other protective order entered pursuant to subsection A, paragraph 1 of this section beyond the minor's eighteenth birthday if the court determines that the order is appropriate pursuant to subsection A, paragraph 2 of this section. The petition shall comply with the requirements of section 14-5404, subsection B and must be filed after the minor's seventeenth birthday and before termination of the conservatorship by court order.

C. The court may require each person who seeks appointment as a conservator to furnish a full set of fingerprints to enable the court to conduct a criminal background investigation. The court shall submit the person's completed fingerprint card to the department of public safety. The person shall bear the cost of obtaining the person's criminal history record information. The cost shall not exceed the actual cost of obtaining the person's criminal history record information. Criminal history records checks shall be conducted pursuant to section 41-1750 and Public Law 92-544. The department of public safety may exchange this fingerprint data with the federal bureau of investigation. This subsection does not apply to a fiduciary who is licensed pursuant to section 14-5651 or an employee of a financial institution. END_STATUTE

Sec. 5. Section 14-5405, Arizona Revised Statutes, is amended to read:

START_STATUTE14-5405. Notice in conservatorship proceedings

A. In a proceeding for the appointment or substitution of a conservator of a protected person or person allegedly in need of protection, other than the appointment of a temporary conservator or temporary suspension of a conservator, and in a proceeding to continue a conservatorship or other protective order pursuant to section 14-5401, subsection B, notice of the hearing shall be given to each of the following:

1. The protected person or the person allegedly in need of protection if that person is fourteen years of age or older.

2. The spouse, parents and adult children of the protected person or person allegedly in need of protection, or if no spouse, parents or adult children can be located, at least one adult relative of the protected person or the person allegedly in need of protection, if such a relative can be found.

3. Any person who is serving as guardian or conservator or who has the care and custody of the protected person or person allegedly in need of protection.

4. Any person who has filed a demand for notice.

B. At least fourteen days before the hearing notice shall be served personally on the protected person or the person allegedly in need of protection and that person's spouse and parents if they can be found within the state. Notice to the spouse and parents, if they cannot be found within the state, and to all other persons except the protected person or the person allegedly in need of protection shall be given in accordance with section 14-1401 all persons listed in subsection a of this section. Waiver of notice by the protected person or the person allegedly in need of protection is not effective unless the protected person or the person allegedly in need of protection attends the hearing. END_STATUTE

Sec. 6. Section 14-5410, Arizona Revised Statutes, is amended to read:

START_STATUTE14-5410. Who may be appointed conservator; priorities

A. The court may appoint an individual or a corporation, with general power to serve as trustee, as conservator of the estate of a protected person subject to the requirements of section 14-5106. The following are entitled to consideration for appointment in the order listed:

1. The person nominated to serve as conservator in the protected person's most recent durable power of attorney.

1. 2. A conservator, guardian of property or other like fiduciary appointed or recognized by the appropriate court of any other jurisdiction in which the protected person resides.

2. 3. An individual or corporation nominated by the protected person if the protected person is at least fourteen years of age and has, in the opinion of the court, sufficient mental capacity to make an intelligent choice.

3. The person nominated to serve as conservator in the protected person's most recent durable power of attorney.

4. The spouse of the protected person.

5. An adult child of the protected person.

6. A parent of the protected person, or a person nominated by the will of a deceased parent.

7. Any relative of the protected person with whom the protected person has resided for more than six months before the filing of the petition.

8. The nominee of a person who is caring for or paying benefits to the protected person.

9. If the protected person is a veteran, the spouse of a veteran or the minor child of a veteran, the department of veterans' services.

10. A fiduciary who is licensed pursuant to section 14-5651, other than a public fiduciary.

11. A public fiduciary who is licensed pursuant to section 14-5651.

B. A person listed in subsection A, paragraph 4, 5, 6, 7 or 8 of this section may nominate in writing a person to serve in that person's place. With respect to persons having equal priority, the court shall select the one it determines is best qualified to serve. The court, for good cause, may pass over a person having priority and appoint a person having a lower priority or no priority. For the purposes of this subsection, "good cause" includes a determination that:

1. The protected person's durable power of attorney is invalid.

2. Honoring the protected person's durable power of attorney would not be in the physical, emotional or financial best interest of the protected person.

3. The estimated cost of the fiduciary and associated professional fees would adversely affect the ability of the person's estate to provide for the protected person's reasonable and necessary living expenses.

C. On the request of a person who was passed over by the court pursuant to subsection B of this section, the court shall make a specific finding regarding the court's determination of good cause and why the person was not appointed. The request must be made within ten days after the entry of the order. END_STATUTE