NEW LAW PREVENTS HEALTH CARE AGENTS FROM LIMITING VISITATION WITHOUT COURT ORDER

Effective September 29, 2022, under new law A.R.S. § 36-3211, health-care agents may no longer protect incapacitated adults from upsetting visits without a court order.  This new law requires an agent under Health Care Power of Attorney (HCPOA) to “encourage and allow contact” between the person who appointed them (“the principal”) and those with whom they have a “significant relationship.” Further, an agent cannot “limit, restrict or prohibit reasonable contact between the principal and any other person without prior court approval, unless the principal has granted the agent such authority in a health care directive.”

The motivation for laws like this comes from cases like Casey Kasem where his wife excluded his children from a prior relationship. While keeping relationships intact is most often best, there are instances where contact can be harmful such as cases involving financial exploitation, verbal or physical abuse. In those instances, the new law may result in increased court disputes.

The law does provide an out. If the principal grants the express authority to limit contact in a health care power of attorney, the agent does not need a court order.

Without this authority in the document, the Agent will have to file a lawsuit, or petition. The petition must: 1) describe the relationship, 2) describe the restrictions sought, and 3) explain why the limitations are in the principal’s best interest. If the agent seeks to terminate all contact as “detrimental to the principal’s physical or emotional health or well-being,” a physician must also submit a written statement in support. With these proceedings, the agent has to “give notice,” or inform both the principal and the person whose contact will be affected about the lawsuit. This can easily become an expensive and emotional battle.

Other parties can also seek a court order related to visitation. The person whose contact has been limited or the principal may petition to compel contact. They must describe the relationship and the contact being requested. The petitioner has to prove: 1) the relationship is significant, and 2) contact is in the principal’s best interest.

If the situation appears urgent, a judge can issue a temporary order, even without notice. The order can limit contact if there are “reasonable grounds to believe that contact . . . would result in immediate and irreparable injury, loss or damage to the principal.”

The visitation law instructs judges how to decide what, if any, contact is in the principal’s best interest. Factors to be considered include the following:

  1. Past and present relationship,
  2. The principal’s wishes, if there’s sufficient mental capacity to make an intelligent choice,
  3. The mental and physical health of both parties, and
  4. Any history of domestic violence, child abuse, elder abuse, drug or alcohol abuse, or a record of false reporting.

Judges are also instructed to “safeguard the wishes of the principal if those wishes can be reasonably ascertained.”

In these visitation proceedings, the principal will be provided their own attorney and/or guardian ad litem. The judge can also appoint an investigator and/or physician who will submit written reports. All of these professionals can charge fees for their services. The judge can also decide that a party who “acted in bad faith or unreasonably” will pay the legal and professional fees and expenses. After the initial Order, any party can request modification based upon “a material change” in the principal’s health, safety or welfare.

These court proceedings work very much like a guardianship proceeding, which are typically not necessary when there is a HPCOA in effect. In light of this visitation law, you may wish to update your health care power of attorney to expressly include — or exclude — the power of your agent to decide who you associate with if you ever are unable to decide yourself.

Having effective and experienced legal counsel who have seen through these situations and types of cases is invaluable in helping to avoid legal proceedings or work through them, when needed, to help with the best possible outcome. Contact our experienced elder law attorneys for advice on how to best avoid Court, when possible, or alternatively use Court, when needed, to seek protection for your vulnerable loved ones.  Call 480-922-1010 or email info@bivenslaw.com to schedule your consultation today!

-Stephanie A. Bivens, Esq., CELA

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