Arizona’s probate code is about to change.  SB 1291 makes significant changes to Title 14, governing matters related to decedent’s, missing persons, protected persons, minors, and incapacitated persons. This new law will go into effect on October 30, 2023.

The following are highlights of the bill:

• Adds A.R.S. § 14-1102(B) 4 and 5 adding purposes to promote speedy, efficient and inexpensive system while ensuring due process and other constitutional rights are protected and to provide just and appropriate remedies for parties who incur damages as a result of vexatious conduct.
• Amends A.R.S. § 14-1401(B)(1) to eliminate the ability to give notice by “ordinary first class mail” (notice could still be given by certified or registered mail).
• Adds a new section 14-5111, which would impose on an attorney appointed to represent the subject person of a guardianship or conservatorship proceeding certain duties, including the duty to meet with the subject person within seven calendar days before the initial hearing on the petition for appointment of permanent guardian or conservator and to inform the subject person of the person’s rights. At the initial hearing, the attorney must attest to the court that the attorney has fulfilled the requirements set forth in the statute or provide an explanation as to why the attorney has been unable to comply with those requirements. Failure to comply with the requirements could constitute a contempt of court.
• Amends A.R.S. § 14-5303(B) and A.R.S. 14-5404(B) requires a petition for the appointment of a guardian or conservator to disclose whether the alleged incapacitated person is the principal of a health care power of attorney or is the principal of a durable power of attorney in which the alleged incapacitated person nominates someone to serve as guardian. If such a power of attorney exists, the petitioner must attach a copy of it to the petition. The petition also must state if the alleged incapacitated person has a present vested interest in a trust and name the trust and current trustee of the trust.
• Amends A.R.S. § 14-5303(D) and § 14-5407(E) requiring the Court to read into record the notice of right to trial by jury in the initial hearing on the petition.
• Amends A.R.S. § 14-5309 and A.R.S. § 14-5405 adding section C which requires the notice to provide notice of right to trial by jury. Also added section D which adds intentional failure to provide notice as provided or knowingly makes a false claim that the person did not receive notice to hearing to pay damages including reasonable attorney fees and costs.
• Amends A.R.S. § 14-5316(B), (D), and (E) and add new subsections F and O to that statute.
  • Prohibits the guardian from limiting 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’s health, safety or welfare
  • 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
  • After filing a petition regarding contact under this section the petition shall request an initial hearing which shall occur no later than 15 judicial days after the court receives petitioner’s request
  • If the Court finds the guardian has unreasonably denied contact between a ward and an individual with a significant relationship with the ward the court can remove the guardian and/or order the guardian to pay some or all reasonable attorney fees and expenses incurred by the person or the ward
• Amends A.R.S. § 14-5401(A)(2) to require clear and convincing evidence before the trial court appoints a conservator
• Adds A.R.S. § 14-5401(D) before appointing a conservator, the alleged incapacitated person must appear before the court in person or virtually, if they are unable or unwilling evidence of their inability or unwillingness must be presented to the court. If the person does not want to attend in person or virtually, they must sign a declaration to be filed with the court declaring their inability or unwillingness.

Supported decision-making agreements:

• Added A.R.S. § 14-5721 Definition section related to supported decision-making agreements
• Added A.R.S. § 14-5722
  • An adult may voluntarily enter in a supported decision-making agreement with a supported which authorizes the supporter to:
    • Provide supported decision-making including assisting the adult in understanding options, responsibilities, and consequences of life decisions, without making the decision on the adult’s behalf
    • Assisting in accessing, collecting and obtaining information relevant to a decision
    • Assisting in understating information from the information collected
    • Assisting in communicating the adult’s decision to appropriate persons
  • Supporter is not a surrogate decision maker and cannot bind the adult to legal agreements
  • The supported decision-making agreement shall set forth rights, roles, duties, limits and obligations of both parties
  • If the supporter intimidates or deceives the adult in procuring the supported decision-making agreement or any authority provided the supporter may be subject to criminal prosecution and civil penalties
  • Supporter may not receive compensation for duties under the agreement and shall act without self-interest and avoid conflicts
  • The supported decision-making agreement must be signed before 2 witnesses or notary
  • The term is until is it terminated in writing by either party, the adult becomes incapacitated, or a guardian is appointed to the adult
  • Gives a sample supported-decision making agreement and such agreements shall be in substantially that form

• Hannah McGuire, Esq.