First Regular Session S.B. 1291
PROPOSED
SENATE AMENDMENTS TO S.B. 1291
(Reference to printed bill)
Page 1, between lines 1 and 2, insert:
"Section 1. Section 14-1401, Arizona Revised Statutes, is amended to read:
14-1401. Notice; method and time of giving
A. If notice of a hearing on any petition is required and except for specific notice requirements as otherwise provided, the petitioner shall cause notice of the time and place of hearing of any petition to be given to any interested person or his attorney if he has appeared by attorney or requested that notice be sent to his attorney. Notice shall be given either:
1. By mailing a copy thereof of the notice at least fourteen days before the time set for the hearing by certified, or registered or ordinary first class mail addressed to the person being notified at the post office address given in his demand for notice, if any, or at his office or place of residence, if known.
2. By delivering a copy thereof of the notice to the person being notified personally at least fourteen days before the time set for the hearing.
3. If the address or identity of any person is not known and cannot be ascertained with reasonable diligence, or when otherwise required under this title, by publishing at least three times prior to before the date set for the hearing a copy thereof of the notice in a newspaper having general circulation in the county where the hearing is to be held, the first publication of which is to be at least fourteen days before the hearing.
B. The court for good cause shown may provide for a different method or time of giving notice for any hearing.
C. Proof of the giving of notice shall be made at or before the hearing and filed in the proceeding.
Sec. 2. Title 14, chapter 5, article 1, Arizona Revised Statutes, is amended by adding section 14-5111, to read:
14-5111. Powers and duties of counsel; alleged incapacitated persons
A. An alleged incapacitated person's attorney shall fulfill the following minimal duties:
1. Within twenty-four hours after appointment, interview the ALLEGED incapacitated person.
2. Provide in writing to the ALLEGED incapacitated person, the alleged incapacitated PERSON'S KNOWN FAMILY MEMBERS AND ANY persons WHO have filed a demand for notice their rights and the process to terminate the conservatorship or guardianship, INCLUDING all of THE FOLLOWING INFORMATION:
(a) the RIGHT TO A JURY TRIAL pursuant to section 14-1306.
(b) The RIGHT TO SELECT AN ATTORNEY OF THE PERSON'S CHOOSING.
(c) THE RIGHT OF THE ALLEGED INCAPACITATED PERSON TO APPEAR IN COURT DURING PROCEEDINGS THAT WILL AFFECT THE ALLEGED incapacitated PERSON'S ESTATE.
(d) A REVIEW OF THE COURT PROCESS, TIMELINES AND EXPECTED FUTURE PROCEEDINGS.
(e) A DETAILED LIST and explanation OF THE DUTIES THE GUARDIAN OR CONSERVATOR WILL ASSUME FOR THE ALLEGED INCAPACITATED PERSON.
(f) THE RIGHT OF FAMILY members AND PERSONS WITH A SIGNIFICANT RELATIONSHIP with the ALLEGED incapacitated person to HAVE REASONABLE ACCESS TO THE alleged INCAPACITATED PERSON UNLESS THE GUARDIAN DEMONSTRATES WITH VERIFIABLE EVIDENCE pursuant to section 14-5316 THAT CONTACT WILL BE DETRIMENTAL TO THE alleged INCAPACITATED PERSON'S HEALTH, SAFETY OR WELFARE.
B. wITHIN FIVE BUSINESS DAYS AFTER APPOINTMENT, THE ALLEGED INCAPACITATED PERSON'S ATTORNEY SHALL PROVIDE EVIDENCE OF HAVING FULFILLED THE REQUIREMENTS PRESCRIBED IN SUBSECTION a OF THIS SECTION.
C. the COURT MAY FIND AN attorney WHO FAILS to fulfill the duties prescribed IN subsection A of this section IN contempt of court.
Sec. 3. Section 14-5303, Arizona Revised Statutes, is amended to read:
14-5303. Procedure for court appointment of a guardian of an alleged incapacitated person
A. The alleged incapacitated person or any person interested in that person's affairs or welfare may petition for the appointment of a guardian or for any other appropriate protective order.
B. The petition shall contain a statement that the authority granted to the guardian may include the authority to withhold or withdraw life sustaining treatment, including artificial food and fluid, and shall state, at a minimum and to the extent known, all of the following:
1. The interest of the petitioner.
2. The name, age, residence and address of the alleged incapacitated person.
3. The name, address and priority for appointment of the person whose appointment is sought.
4. The name and address of the conservator, if any, of the alleged incapacitated person.
5. The name and address of the nearest relative of the alleged incapacitated person known to the petitioner.
6. A general statement of the property of the alleged incapacitated person, with an estimate of its value and including any compensation, insurance, pension or allowance to which the person is entitled.
7. The reason why appointment of a guardian or any other protective order is necessary.
8. The type of guardianship requested. If a general guardianship is requested, the petition must state that other alternatives have been explored and why a limited guardianship is not appropriate. If a limited guardianship is requested, the petition also must state what specific powers are requested.
9. If a legal decision-making, parenting time or visitation order was previously entered regarding an alleged incapacitated person in a marriage dissolution, legal separation or paternity action in this state or another jurisdiction and the petitioner or proposed guardian is a parent of the alleged incapacitated person or a nonparent who has been awarded legal decision-making as to the alleged incapacitated person, the court and case number for that action or proceeding and include a copy of the most recent court order regarding legal decision-making, parenting time and visitation.
10. If the appointment of a guardian is necessary due solely to the physical incapacity of the alleged incapacitated person.
11. IF the alleged incapacitated person has a current, validly executed health care power of attorney, durable power of attorney, certification of trust or other legal directive, THE TYPE OF LEGAL DIRECTIVE AND INCLUDE A COPY OF THE LEGAL DIRECTIVE attached to the petition.
C. On the filing of a petition, the court shall set a hearing date on the issues of incapacity. Unless the alleged incapacitated person is represented by independent counsel, the court shall appoint an attorney to represent that person in the proceeding. The alleged incapacitated person shall be interviewed by an investigator appointed by the court and shall be examined by a physician, psychologist or registered nurse appointed by the court. If the alleged incapacitated person has an established relationship with a physician, psychologist or registered nurse who is determined by the court to be qualified to evaluate the capacity of the alleged incapacitated person, the court may appoint the alleged incapacitated person's physician, psychologist or registered nurse pursuant to this subsection. The investigator and the person conducting the examination shall submit their reports in writing to the court. In addition to information required under subsection D OF THIS SECTION, the court may direct that either report include other information the court deems appropriate. The investigator also shall interview the person seeking appointment as guardian, visit the present place of abode of the alleged incapacitated person and the place where it is proposed that the person will be detained or reside if the requested appointment is made and submit a report in writing to the court. The alleged incapacitated person is entitled to be present at the hearing and to see or hear all evidence bearing on that person's condition. The alleged incapacitated person is entitled to be represented by counsel, to present evidence, to cross-examine witnesses, including the court-appointed examiner and investigator, and to trial by jury. The court may determine the issue at a closed hearing if the alleged incapacitated person or that person's counsel so requests.
D. A report filed pursuant to this section by a physician, psychologist or registered nurse acting within that person's scope of practice shall include the following information:
1. A specific description of the physical, psychiatric or psychological diagnosis of the person.
2. A comprehensive assessment listing any functional impairments of the alleged incapacitated person and an explanation of how and to what extent these functional impairments may prevent that person from receiving or evaluating information in making decisions or in communicating informed decisions regarding that person.
3. An analysis of the tasks of daily living the alleged incapacitated person is capable of performing without direction or with minimal direction.
4. A list of all medications the alleged incapacitated person is receiving, the dosage of the medications and a description of the effects each medication has on the person's behavior to the best of the declarant's knowledge.
5. A prognosis for improvement in the alleged incapacitated person's condition and a recommendation for the most appropriate rehabilitation plan or care plan.
6. Other information the physician, psychologist or registered nurse deems appropriate."
Renumber to conform
Page 1, strike lines 34 through 36
Renumber to conform
Strike lines 43 through 45, insert:
"3. The person nominated to serve as guardian in the incapacitated person's most recent durable power of attorney, certification of trust or health care power of attorney."
Page 3, line 21, after "may" insert "not"
Line 22, strike "if the"
Strike line 23
Line 24, strike "evidence" insert "who has a significant relationship with the ward without verifiable evidence"
Page 6, line 6, strike "for cause IF THE COURT FINDS BY CLEAR AND CONVINCING EVIDENCE" insert "for cause"
Line 17, after "finds" insert "by clear and convincing evidence"
Page 7, between lines 2 and 3, insert:
"d. If the court finds that the petition is not supported by clear and convincing evidence or is vexatious, the court may award sanctions and damages.
Sec. 8. Section 14-5404, Arizona Revised Statutes, is amended to read:
14-5404. Original petition for appointment or protective order
A. The person allegedly in need of protection, any person who is interested in that person's estate or affairs, including that person's parent, guardian or custodian, or any person who would be adversely affected by lack of effective management of that person's estate and affairs may petition for the appointment of a conservator or for any other appropriate protective order.
B. The petition shall set forth, at a minimum and to the extent known, all of the following:
1. The interest of the petitioner.
2. The name, age, residence and address of the person allegedly in need of protection.
3. The name, address and priority for appointment of the person whose appointment is sought.
4. The name and address of the guardian, if any, of the person allegedly in need of protection.
5. The name and address of the nearest relative of the person allegedly in need of protection known to the petitioner.
6. A general statement of the estate of the person allegedly in need of protection with an estimate of its value, including any compensation, insurance, pension or allowance to which the person is entitled and whether the person allegedly in need of protection is a beneficiary of a trust.
7. The reason why appointment of a conservator or any other protective order is necessary.
8. by Clear and convincing evidence that the person allegedly in need of protection is in need of a conservator or any other protective order.
9. Any reason why the petitioner should not be appointed.
10. If the person allegedly in need of protection has a validly executed durable power of attorney, health care power of attorney, certification of trust or other directive, the type of legal directive and include a copy of the legal directive attached to the petition."
Renumber to conform
Page 7, line 40, strike "are entitled to" insert "order shall be used in"; strike "in the order"
Line 41, strike "listed"
Line 43, after "attorney" insert ", certification of trust or trust"
Page 7, after line 43, insert:
"2. The spouse of the protected person."
Renumber to conform
Page 8, strike line 10
Line 24, strike "4" insert "2"
Amend title to conform