On June 20, 2023, Arizona Governor Katie Hobbs signed SB1291 into law. Among other changes to Arizona’s Guardianship and Conservatorship statutes, SB1291 introduces Article Nine to Title 14, entitled “Supported Decision-Making Agreements”.

Intent of new SDM Agreement law: 

• Gives older adults and people with disabilities or special needs the help they need to make choices about their own lives, such as where they want to live; the services, supports, and medical care they want to receive; whom they want to live with; and where they want to work.
• Promotes self-determination and independence.
• Allows individuals to choose the supporters they want to help them understand, make, and communicate their decisions.
• Enables them to retain authority and make personal decisions.

SDM Agreement law:

1. Allows an adult with a disability who is 18 years or older to enter into a supported decision-making agreement with an adult supporter who is 18 years or older in which the adult authorizes the supporter to do any of the following:
   1. 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;
   2. Assist the adult in accessing, collecting and obtaining any information that is relevant to a life decision, including medical, psychological, financial, educational or treatment records;
   3. Assist the adult in understanding the information listed above; and
   4. Assist the adult in communicating the adult’s decisions to appropriate
2. States 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 or bind the adult in a legal agreement.
3. Requires a supported decision-making agreement to explain the rights, roles, duties and limitations and obligations of both the adult and the supporter who are entering into the agreement.
4. Subjects a supporter who intimidates or deceives the adult to gain the supported decision-making agreement or any authority provided in the supported decision- making agreement to criminal prosecution and civil penalties as otherwise provided by law.
5. Prohibits a supporter from receiving compensation as a result of the supporter’s duties under a supported-decision making agreement.
6. 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 are 18 years or older or a notary public.
7. States that a supported decision-making agreement extends until:
   1. Terminated in writing by either party;
   2. The adult becomes incapacitated; or
   3. A guardian is appointed.
8. Establishes a supported decision-making agreement form.
9. Defines relevant terms.
10. Adds a supported decision-making agreement to the existing definition of a governing instrument for purposes of Title 14.
11. Makes technical changes.

While this legislation recognizes the importance of encouraging supported decision-making,  there remain many concerns and questions regarding the effect and use of SDM Agreements. The new law will go into effect 90 days after close of the 2023 legislative session, which is currently scheduled to adjourn on August 11, 2023.

We will continue to work with our clients to find the right solutions for their individual circumstances and will have SDM Agreements ready when the law goes into effect. We handle all types of Guardianships, Conservatorships, Special Needs Trusts and planning, and now SDM Agreements.

Call us today at 480-922-1010 or email info@bivenslaw.com to schedule your special needs planning consultation. 

-Stephanie A. Bivens, Esq. CELA

Disclaimer: The information contained in this article is provided for informational purposes only, and should not be construed as offering legal advice or creating an attorney client relationship between the reader and the firm or author. You should not act or refrain from acting on the basis of any content included in this article without seeking appropriate legal advice about your individual facts and circumstnaces from an attorney licensed in your state. Bivens & Associates, PLLC expressly disclaims all liability with respect to actions taken or not taken based upon any or all information contained in this article.