2023 Major Amendments to Arizona Probate Code
By Kent Berk on August 8th, 2023 in conservatorship, Elder Abuse, Elder Abuse Awareness, Elder Law, FINANCIAL EXPLOITATION, guardianship, PROBATE LITIGATION, undue influence
The legal landscape is ever-evolving, with laws being amended to address the changing needs of society. One such amendment in Arizona is SB1291, which has made significant changes to Title 14, governing matters related to decedents, missing persons, protected persons, minors, and incapacitated persons. The changes take effect on October 30, 2023. This discussion aims to provide an in-depth analysis of these changes, with specific cross-references to the provisions of Title 14 impacted by SB1291.
Chapter 1. General Provisions, Definitions and Probate Jurisdiction of Courts
Section 14-1102: Purposes; rule of construction
– Changes: SB1291 clarifies and expands the purposes of Title 14:
To promote a speedy, efficient, and inexpensive system for resolving disputes under Chapter 5 of Title 14, ensuring the due process and other constitutional rights of the persons subject to such proceedings are protected.
To provide remedies for parties who incur damages due to vexatious conduct or other unreasonable conduct during proceedings brought pursuant to Title 14, without infringing on the rights of individuals who are the subject of proceedings.
Section 14-1306: Jury trial
– Changes: The amendment clarifies that if there’s no right to a trial by jury or if the right is waived, the court may still call a jury to decide any issue of fact. However, the verdict in such cases would be advisory only.
Section 14-1401: Notice; method and time of giving; damage
– Changes: This is one of the most significant changes to the law. The method of giving notice for any probate hearing has been updated. Service by first class mail is no longer permitted. The notice of hearing can now only be sent via certified or registered mail, personal delivery or, if permitted, publication.
Chapter 5. Protection of Persons Under Disability and Their Property
Article 1. General Provisions
Section 14-5111: Duties of appointed attorney matter; contempt (New)
– New Provision: This section outlines the duties of an attorney appointed for an alleged incapacitated person or a person allegedly in need of protection. No later than seven calendar days before the initial hearing, the attorney must interview the person, inform them of their rights (e.g. to a jury trial, appear in court and select an attorney of their choosing), review the Court process and timelines and expected future proceedings and provide them with a copy of the order to the proposed appointee. The attorney must attest to the court that they have fulfilled these duties or provide an explanation if they haven’t. The court may find an attorney in contempt if they fail to fulfill these duties.
Article 3. Guardians of Incapacitated Persons
Section 14-5303: Procedure for court appointment of a guardian of an alleged incapacitated person
– Changes: The petition for the appointment of a guardian must now contain statements whether the alleged incapacitated person is the principal under a health care power of attorney or durable power of attorney in which the person has nominated a guardian. If so, copies of the power(s) of attorney must be attached to the petition.
The petition must also state whether the person has a present vested interest in a trust, and, if so, the name of the trust and the current trustee of the trust.
At the initial hearing, the Court is required to read into the record the notice of right to trial by jury as stated in the notice of hearing.
Section 14-5309: Notices in guardianship proceedings
– Changes: In addition to stating the time and place of the hearing, a notice of hearing in a guardianship matter must now also include notice of the right to a jury trial as provided in Section 14-1306.
Also, the Court may now assess damages, fees and costs against anyone the Court finds intentionally failed to give notice or knowingly made a false claim that they did not receive notice.
Section 14-5316: Maintaining ward’s relationships; contact orders; definitions
– Changes: Section 14-5316 requires the guardian to foster and maintain the ward’s contact with those who whom the ward has significant relationships. The guardian may not limit the ward’s contact unless the guardian reasonably believes that the contact will be detrimental to the ward’s health, safety or welfare. If challenged, the burden is now on the guardian to prove by clear and convincing evidence that the contact should not be permitted because it would be detrimental to the ward’s health, safety or welfare.
To expedite determination of such issues, the Court is required to set the initial hearing on petitions to determine contact within fifteen days of the petitioner’s request.
If the Court finds that the guardian unreasonably denied contact, the Court may remove the guardian and/or order the guardian to pay some or all the attorneys’ fees incurred by the person requesting contact and/or by the ward.
Article 4. Protection of Property of Persons Under Disability and Minors
Section 14-5401: Protective proceedings; fingerprinting
– Changes: Section 14-5401 now requires proof by clear and convincing evidence that the person is unable to manage their affairs and has property that will be wasted or dissipated unless the appointment is made.
Unless the appointment of a conservator is sought because the person is confined, detained by a foreign power or missing, the court shall not appoint a conservator or enter a protective order for a person under subsection a, paragraph 2 of section 14-5401 unless the person allegedly in need of protection has appeared before the court either in person or by virtual means. If that person is unable or unwilling to appear, evidence of the person’s inability or unwillingness to attend shall be presented to the court. If the person does not wish to attend in person or by virtual means, a declaration signed by that person shall be filed with the court to prove the person’s inability or unwillingness to attend.
Section 14-5404: Original petition for appointment or protective order
– Changes: The petition for the appointment of a conservator must now contain statements whether the proposed ward is a principal under a durable power of attorney or under a health care power of attorney in which the person nominates a conservator. If so, copies of the power(s) of attorney must be attached to the petition.
The petition must also explain whether the person has a present vested interest in a trust, and, if so, the name of the trust and the current trustee of the trust.
Section 14-5405: Notice in conservatorship proceedings
– Changes: In addition to stating the time and place of the hearing, a notice of hearing in a conservatorship matter must now also include notice of the right to a jury trial as provided in Section 14-1306.
Also, the Court may now assess damages, fees and costs against anyone the Court finds intentionally failed to give notice or knowingly made a false claim that they did not receive notice.
Section 14-5407: Procedure concerning hearing and order on original petition
– Change: At the initial hearing, the Court is required to read into the record the notice of right to trial by jury as stated in the notice of hearing.
ARTICLE 9. Supported Decision-Making Agreements (New)
SB1291 adds an entirely new Article 9, Sections 14-5721 and 14-5722, for Supported Decision-Making Agreements (SDMAs). SDMA’s are legal instruments that allow individuals, particularly those with disabilities to make their own decisions about their lives with the support of trusted individuals. Instead of removing or limiting a person’s decision-making rights, as is the case with guardianships or conservatorships, SDMAs enable the person to retain their rights while receiving assistance in understanding and making decisions.
Key points of Article 9 include:
Purpose and Intent: The primary goal of SDMAs is to respect the autonomy and rights of individuals, allowing them to make decisions about their lives with the support of trusted individuals.
Appointment of Supporters: Individuals can appoint one or more supporters to assist them in understanding, making, and communicating decisions. This can include accessing, collecting, and obtaining information relevant to a decision. The appointment must be made in an agreement substantially in the form set forth in Section 14-5722(H).
Duties of Supporters: Supporters must act in good faith, be loyal and act in the best interests of the individual. They should provide accurate and complete information to help the individual make informed decisions.
Limitations: The SDMA does not give supporters the authority to make decisions on behalf of the individual. It only allows them to assist in the decision-making process.
Termination: The individual has the right to terminate or modify the SDMA at any time. Certain events, such as incapacity of the adult or appointment of a guardian for the person, automatically terminate the agreement. However, disputes may arise over when someone became incapacitated.
In essence, Supported Decision-Making Agreements offer an alternative to more restrictive measures like guardianships. They promote autonomy and self-determination by allowing individuals to make decisions with the support and assistance of trusted individuals, without relinquishing their rights. By emphasizing support over restriction, these agreements ensure that individuals can make informed decisions about their lives while retaining their rights and dignity.
Potential Pitfalls or Problems with Supported Decision-Making Agreements
However, like any legal instrument, SDMAs are not immune to potential problems or disputes. Here are some of the potential issues that can arise under such agreements:
- Undue Influence: One of the primary concerns with SDMAs is the potential for undue influence by the supporter. Since the supporter is in a position to assist and influence the individual’s decisions, there’s a risk that they might exert undue influence to sway decisions in their favor or for their benefit, contrary to the best interests and wishes of the adult.
- Misunderstanding of Roles: There might be confusion regarding the role of the supporter. Some might mistakenly believe that the supporter has decision-making authority, leading to conflicts when the individual’s wishes are not respected.
- Conflicts of Interest: A supporter might have personal or financial interests that conflict with the best interests of the individual. This can lead to decisions that benefit the supporter rather than the individual.
- Potential for Abuse: There’s a risk that unscrupulous individuals might exploit the SDMA framework to take advantage of vulnerable individuals, especially in financial matters.
- Reluctance by Third Parties: Some third parties, like banks or medical providers, might be hesitant to recognize or respect an SDMA, especially if they are unfamiliar with the concept. This can lead to delays or disputes when trying to carry out decisions.
- Ambiguities in the Agreement: If the SDMA is not clearly drafted, it can lead to ambiguities about the scope of the supporter’s role or the types of decisions covered by the agreement.
- Over-reliance on the Supporter: The individual might become overly dependent on the supporter, inhibiting their ability to make decisions independently.
- Termination Disputes: Issues might arise regarding the termination of the SDMA, especially if there are disagreements about whether conditions for termination, such as incapacity of the individual, have been met.
- Multiple Supporters: If an individual appoints multiple supporters, there might be disagreements or conflicts among them regarding the best course of action for the individual.
- Lack of Oversight: Unlike guardianships, which have court oversight, SDMAs lack a formal oversight mechanism, increasing the potential for misuse or abuse.
- Legal Recognition: As SDMAs are a relatively new legal concept, there might be challenges in getting them recognized or enforced in jurisdictions that are unfamiliar with them, such as Arizona.
In conclusion, while Supported Decision-Making Agreements offer a valuable tool for promoting autonomy and self-determination, it’s essential to approach them with care and diligence. Proper drafting, clear communication, and regular review can help mitigate many of the potential problems associated with SDMAs.
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This is a detailed breakdown of the changes introduced by SB1291 in relation to Title 14. You can read SB1291, but do not hesitate to contact us if you have any questions.