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ARIZONA STATE SENATE
Fifty-Sixth Legislature, First Regular Session
AMENDED
guardianship; conservatorship; policies; procedures
(NOW: conservatorship; guardianship; policies; procedures)
As passed by the Senate S.B. 1291 reprioritized the list of persons that a court may consider for appointment as a conservator and required a guardian to show by verifiable evidence, rather than by reasonable belief, that contact between any person and the ward would be detrimental to the ward's health, safety or welfare. S.B. 1291 also required notice of a guardianship hearing to be personally served on all persons as required by statute.
The House of Representatives adopted a strike-everything amendment that does the following:
Purpose
Modifies requirements and procedures relating to guardianship and conservatorship hearings. Adds to the requirements a petition for guardianship, conservatorship or other protective order must include and adds requirements that an attorney for an alleged incapacitated or person in need of protection must fulfill. Prescribes procedural requirements and limitations for entering into a supported decision-making agreement between an adult and a supporter.
Background
If duly demanded, a party is entitled to trial by jury in any probate
proceeding in which any controverted question of fact arises as to which any
party has a constitutional right to trial by jury. If there is no right to
trial by jury as prescribed, or the right is waived, the court in its
discretion may call a jury to decide any issue of fact, in which case the
verdict is advisory only (A.R.S.
§ 14-1306).
A person becomes a guardian of a minor by acceptance of a testamentary appointment or upon appointment by the court. The guardianship status continues until terminated, without regard to the location from time to time of the guardian and minor ward. A person becomes a guardian of an incapacitated person by a parental or spousal appointment or on appointment by the court. The guardianship continues until it is terminated, without regard to the location of the guardian or the ward. A guardian must encourage and allow contact between the ward and other persons who have a significant relationship with the ward. A guardian may limit, restrict or prohibit contact between the ward and any person if the guardian reasonably believes that the contact will be detrimental to the ward's health, safety or welfare (A.R.S. §§ 14-5201; 14-5301.02 and 14-5316).
The court may appoint a conservator or make another protective order, for cause, on petition and after notice and a hearing 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 the minor 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. The court may also appoint a conservator in relation to the estate and affairs of a person if the court finds that: 1) the person is unable to manage the person's estates and affairs due to 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) that 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 (A.R.S. § 14-5401).
There is no anticipated fiscal impact to the state General Fund associated with this legislation.
Provisions
Guardianship and Conservatorship Proceedings
1. Adds to the purpose of the probate jurisdiction of the courts to include the following:
a) to promote a speedy, efficient and inexpensive system for resolving disputes arising out of statute regarding the protection of persons under disability and the persons' property; and
b) to provide just and appropriate remedies for parties who incur damages as a result of vexatious conduct, as defined by court rule, or other unreasonable conduct during probate proceedings, without impinging on the rights of individuals who are in need of protection.
2. Adds to the requirements that notice for the appointment or substitution of a permanent guardian, conservator or other protective order must meet to include notice of the right to a trial by jury in addition to stating the time and place of the hearing.
3. Allows the court to order a person who intentionally fails to provide notice of a hearing as prescribed, or who knowingly makes a false claim that the person did not receive notice of a hearing, to pay damages, including reasonable attorney fees and costs, incurred as a result of the conduct outlined.
4. Requires the court to read into the record the notice of right to a trial by jury as stated in the notice of hearing at the initial hearing on a petition to appoint a guardian, conservator or other protective order.
5. Removes the option for notice of hearing on any petition in the probate court to be given to any interested person or the person's attorney by ordinary first-class mail.
6. Requires the attorney for an alleged incapacitated person or person allegedly in need of protection, no later than 7 calendar days before the initial hearing on the petition for the appointment of a permanent guardian or conservator, to:
a) interview the alleged incapacitated person or person allegedly in need of protection;
b) inform the alleged incapacitated person or person allegedly in need of protection of the following:
i. the right to a trial by jury;
ii. the right to select an attorney of the person's choosing;
iii. if the attorney is appointed by the court, the right of the person to hire a different attorney at the person's own expense;
iv. the right of an alleged incapacitated person to appear in court and to have any person the alleged incapacitated person wishes to be present;
v. a review of the court process, timelines and expected future proceedings; and
c) provide the incapacitated person or person allegedly in need of protection with a copy of the Supreme Court promulgated order to appoint a guardian, conservator or guardian and conservator that the court will enter if the relief requested in the petition is granted.
7. Requires the attorney for the alleged incapacitated person, at the initial hearing on the petition for appointment, to attest to having fulfilled the requirements as outlined or to provide an explanation as to why the attorney has been unable to comply with the requirements.
8. Allows the court to find an attorney in contempt of the court for failure to meet the requirements as outlined.
9. Adds additional requirements a petition for guardianship or other protective order must have to include whether the alleged incapacitated person or person allegedly in need of protection:
a) is the principal under a health care power of attorney, and, if so, a copy of the healthcare power of attorney must be attached to the petition;
c) has a present vested interest in a trust, and, if so, the name of the trust and the current trustee of the trust.
10. Adds additional requirements that a petition for conservatorship or other protective order must set forth to include whether the person allegedly in need of protection:
a) is the principal under a health care power of attorney in which the person nominates a conservator, and, if so, a copy of the healthcare power of attorney must be attached to the petition;
b) is the principal under a durable power of attorney, and, if so, a copy of the durable power of attorney must be attached to the petition; and
c) has a present vested interest in a trust, and, if so, the name of the trust and the current trustee of the trust.
11. Prohibits a guardian from limiting, restricting or prohibiting contact between the ward and any person the ward wishes to have contact with, unless the guardian reasonably believes the contact will be detrimental to the ward.
12. Requires the petitioner that files a petition to allow contact between a ward and a person with whom the ward wishes to have contact with to request that the court set an initial hearing on the petition.
13. Requires the initial hearing on a petition to allow contact to occur as soon as possible and no later than 15 judicial days after the court receives the petitioners request, unless the petitioner requests a later initial hearing.
14. Specifies that, during a hearing on a petition to allow contact with the ward, either filed by the ward or a person who has a significant relationship with the ward, the guardian has the burden of proving by clear and convincing evidence that the requested contact will be detrimental to the ward's health, safety or welfare.
15. Allows the court, if it finds that the guardian has unreasonably denied contact between the ward and a person who has a significant relationship with the ward, to:
a) remove the guardian; and
b) order the guardian to personally pay some or all of the reasonable attorney fees and expenses incurred by the person, the ward or both.
16. Allows the court to appoint a conservator or make another protective order in relation to the estate and affairs of a minor or other person, as prescribed, if the court finds by clear and convincing evidence that it is necessary.
a) the person allegedly in need of protection has appeared before the court either in person or by virtual means; or
b) the basis for the appointment is that the person allegedly in need of protection is confined, detained by a foreign power or missing.
18. Specifies that if a person allegedly in need of protection is unable or unwilling to appear before the court either in person or by virtual means the following must occur:
a) evidence must be presented to the court of the persons inability or unwillingness to appear; and
b) a declaration signed by the person must be filed with the court to prove the person's inability or unwillingness to attend the hearing.
19. Requires the court, after receiving evidence of a person's incapacity to weigh the evidence, to request additional evidence if necessary and to document all evidence in the court record.
Supported Decision-Making Agreements
20. 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.
21. Defines adult as an individual with a disability who is at least 18 years old.
22. 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.
23. Prohibits a supporter from receiving compensation as a result of the supporter's duties under a supported decision-making agreement.
24. Requires a supported decision-making agreement to 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.
25. Stipulates that the signature process is subject to the following requirements:
a) by witnessing the agreement, each witness or notary affirms that the witness or notary was present when the person dated and signed or marked the agreement, except as otherwise provided, and that the person appeared to be of sound mind and free from duress at the time of execution of the agreement;
b) if a person is physically unable to sign or mark the agreement, the witness of notary must verify on the document that the person directly indicated to the notary or witness that the agreement expressed the person's wishes and that the person intended to adopt the agreement at that time.
26. 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.
27. 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 the persons' property.
28. Requires the supporter to act without self-interest and avoid conflicts of interest.
29. Defines disability as a physical or mental impairment that substantially limits one or more major life activities.
30. 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.
31. Defines intimidate as threatening to deprive an adult of food, nutrition, shelter or necessary medication or medical treatment.
32. 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, with whom the adult wants to live and where the adult wants to work, without impeding the adult's self-determination.
33. Defines supported decision-making agreement as an agreement between an adult and a supporter that follows statutory guidance.
34. Defines supporter as a person who is at least 18 years old and who enters into a supported decision-making agreement with an adult.
35. Adds supported decision-making agreements to the definition of governing instrument.
Miscellaneous
36. Makes technical and conforming changes
37. Becomes effective on the general effective date.
Amendments Adopted by the House of Representatives
1. Adopted the strike-everything amendment relating to conservator and guardianship procedures.
2. Adds that if an attorney is appointed by the court, the attorney must explain to the alleged incapacitated person or person allegedly in need of protection that the person may hire a different attorney at the person's own expense.
3. Adds that the attorney for an alleged incapacitated person or person allegedly in need of protection must provide the person with a copy of the Supreme Court promulgated order to appoint a guardian, conservator or guardian and conservator.
4. Adds that a petition for guardianship must include whether the person allegedly in need of protection has a present vested interest in a trust, and, if so, the name of the trust and current trustee.
5. Requires the court to read into the record the right to a trial by jury at the initial hearing on a petition for guardianship, conservatorship or other protective order.
6. Requires an initial hearing on a petition to allow contact between a ward and a person with whom the ward would like to have contact with to be heard no later than 15 judicial days after the court receives the petitioners request, unless the petition has requested a later initial hearing date.
7. Removes the requirement that a guardian provide written notice of the guardian's powers and duties within 10 courts days after being appointed as guardian of an adult.
8. Prohibits the court from appointing a conservator or entering another protective order for a person, unless specified exceptions apply.
9. Prescribes
procedural requirements and limitations for entering into a supported
decision-making agreement between an adult and a supporter.
House Action
JUD 3/29/23 DPA/SE 8-0-0-0
3rd read 5/15/23 57-0-2-0-1
Prepared by Senate Research
May 31, 2023
ZD/KS/sr