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REFERENCE TITLE: guardianship; supported decision-making |
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State of Arizona House of Representatives Fifty-fourth Legislature Second Regular Session 2020
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HB 2769 |
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Introduced by Representatives Longdon: Allen J
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AN ACT
amending section 14-5304, arizona revised statutes; amending title 14, chapter 5, arizona revised statutes, by adding article 9; relating to guardians of incapacitated persons.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Section 14-5304, Arizona Revised Statutes, is amended to read:
14-5304. Findings; limitations; filing; fingerprinting
A. In exercising its appointment authority pursuant to this chapter, the court shall encourage the development of maximum self‑reliance and independence of the incapacitated person.
B. The court may appoint a general or limited guardian as requested if the court finds by clear and convincing evidence that:
1. The person for whom a guardian is sought is incapacitated.
2. The appointment is necessary to provide for the demonstrated needs of the incapacitated person.
3. The person's needs cannot be met by less restrictive means, including the use of appropriate technological assistance or a supported decision-making agreement pursuant to article 9 of this chapter.
C. In conformity with the evidence regarding the extent of the ward's incapacity, the court may shall appoint a limited guardian and specify appropriate time limits on the guardianship and limitations on the guardian's powers as a least restrictive alternative, unless the court concludes that the extent of the ward's incapacity requires that all rights of the person be removed and all decision-making authority for the person be granted to the guardian.
D. The guardian shall file an acceptance of appointment with the appointing court.
E. The court may require each person who seeks appointment as a guardian to furnish a full set of fingerprints to enable the court to conduct a criminal background investigation. The court shall submit the person's completed fingerprint card to the department of public safety. The person shall bear the cost of obtaining the person's criminal history record information. The cost shall not exceed the actual cost of obtaining the person's criminal history record information. Criminal history records checks shall be conducted pursuant to section 41‑1750 and Public Law 92‑544. The department of public safety may exchange this fingerprint data with the federal bureau of investigation. This subsection does not apply to a fiduciary who is licensed pursuant to section 14‑5651 or an employee of a financial institution.
F. The court shall make a specific finding as to whether the appointment of a guardian is due solely to the ward's physical incapacity.
G. Unless the court makes a specific finding that the appointment of a guardian is due solely to the ward's physical incapacity under subsection F of this section, at the time of appointing a guardian, the court shall transmit the ward's name, sex and date of birth, the last four digits of the ward's social security number, if available, the court case number, the court originating agency identification number and the date of the guardian's appointment to the supreme court. The supreme court shall transmit the information to the department of public safety. The department of public safety shall transmit the information to the national instant criminal background check system.
Sec. 2. Title 14, chapter 5, Arizona Revised Statutes, is amended by adding article 9, to read:
ARTICLE 9. SUPPORTED DECISION-MAKING AGREEMENTs
14-5721. Definitions
IN THIS article, UNLESS THE CONTEXT OTHERWISE REQUIRES:
1. "ADULT" MEANS AN INDIVIDUAL WHO IS AT LEAST EIGHTEEN YEARS OF AGE.
2. "DISABILITY" MEANS A PHYSICAL OR MENTAL IMPAIRMENT THAT SUBSTANTIALLY LIMITS ONE OR MORE MAJOR LIFE ACTIVITIES.
3. "SUPPORTED DECISION-MAKING" MEANS A PROCESS OF SUPPORTING AND ACCOMMODATING AN ADULT WITH A DISABILITY TO ENABLE THE ADULT WITH A DISABILITY TO MAKE LIFE DECISIONS, INCLUDING DECISIONS RELATED TO WHERE THE ADULT WANTS TO LIVE, THE SERVICES, SUPPORTS AND MEDICAL CARE THE ADULT WANTS TO RECEIVE, WHOM THE ADULT WANTS TO LIVE WITH AND WHERE THE ADULT WANTS TO WORK, WITHOUT IMPEDING THE adult's SELF-DETERMINATION.
4. "SUPPORTED DECISION-MAKING AGREEMENT" means AN AGREEMENT BETWEEN AN ADULT WITH A DISABILITY AND A SUPPORTER ENTERED INTO pursuant to THIS ARTICLE.
14-5722. Scope of agreement
A. AN ADULT WITH A DISABILITY MAY VOLUNTARILY, WITHOUT UNDUE INFLUENCE OR COERCION, ENTER INTO A SUPPORTED DECISION-MAKING AGREEMENT WITH A SUPPORTER UNDER WHICH THE ADULT WITH A DISABILITY AUTHORIZES THE SUPPORTER TO DO ANY OR ALL OF THE FOLLOWING:
1. PROVIDE SUPPORTED DECISION-MAKING, INCLUDING assisting the adult with a disability IN UNDERSTANDING THE OPTIONS, RESPONSIBILITIES AND CONSEQUENCES OF THE ADULT'S LIFE DECISIONS, WITHOUT MAKING THOSE DECISIONS ON BEHALF OF THE ADULT WITH A DISABILITY.
2. SUBJECT TO SECTION 14-5724, ASSIST THE ADULT with a disability IN ACCESSING, COLLECTING AND OBTAINING FROM ANY PERSON INFORMATION THAT IS RELEVANT TO A GIVEN LIFE DECISION, INCLUDING MEDICAL, PSYCHOLOGICAL, FINANCIAL, EDUCATIONAL, OR TREATMENT RECORDS.
3. ASSIST THE ADULT WITH A DISABILITY IN UNDERSTANDING THE INFORMATION DESCRIBED IN paragraph 2 of this subsection.
4. ASSIST THE ADULT with a disability IN COMMUNICATING THE ADULT'S DECISIONS TO APPROPRIATE PERSONS.
B. A SUPPORTER IS NOT A SURROGATE DECISION MAKER FOR THE ADULT WITH A DISABILITY AND DOES NOT HAVE THE AUTHORITY TO SIGN LEGAL DOCUMENTS ON BEHALF OF THE ADULT WITH A DISABILITY OR BIND THE ADULT WITH A DISABILITY TO A LEGAL AGREEMENT.
A. A SUPPORTER MAY EXERCISE THE AUTHORITY GRANTED TO THE SUPPORTER IN THE SUPPORTED DECISION-MAKING AGREEMENT.
B. A SUPPORTER IS IN A FIDUCIARY RELATIONSHIP WITH THE ADULT WITH A DISABILITY AND OWES THE ADULT THE FOLLOWING DUTIES:
1. TO ACT IN GOOD FAITH.
2. TO ACT WITHIN THE AUTHORITY GRANTED IN THE supported decision‑making AGREEMENT.
3. TO ACT LOYALLY AND WITHOUT SELF-INTEREST.
4. TO AVOID CONFLICTS OF INTEREST.
5. TO DISCLOSE TO THE ADULT WITH A DISABILITY ALL FACTS KNOWN TO THE SUPPORTER RELEVANT TO supported decision-making.
14-5724. Access to personal information
A. A SUPPORTER IS ONLY AUTHORIZED TO ASSIST THE ADULT WITH A DISABILITY IN ACCESSING, COLLECTING OR OBTAINING INFORMATION THAT IS RELEVANT TO A DECISION AUTHORIZED UNDER a SUPPORTED DECISION-MAKING AGREEMENT.
B. IF A SUPPORTER ASSISTS AN ADULT WITH A DISABILITY IN ACCESSING, COLLECTING OR OBTAINING PERSONAL INFORMATION, INCLUDING PROTECTED HEALTH INFORMATION UNDER THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OF 1996 (P.L. 104-191) OR EDUCATIONAL RECORDS UNDER THE FAMILY EDUCATIONAL RIGHTS AND PRIVACY ACT OF 1974 (20 United States Code SECTION 1232g), THE SUPPORTER SHALL ENSURE THE INFORMATION IS KEPT PRIVILEGED AND CONFIDENTIAL, AS APPLICABLE, AND IS NOT SUBJECT TO UNAUTHORIZED ACCESS, USE OR DISCLOSURE.
C. THE EXISTENCE OF A SUPPORTED DECISION-MAKING AGREEMENT DOES NOT PRECLUDE the ADULT WITH A DISABILITY FROM SEEKING PERSONAL INFORMATION WITHOUT THE ASSISTANCE OF A SUPPORTER.
14-5725. Agreement term; termination; requirements
A. A SUPPORTED DECISION-MAKING AGREEMENT EXTENDS UNTIL TERMINATED IN WRITING BY EITHER PARTY OR BY THE TERMS OF THE AGREEMENT.
B. A SUPPORTED DECISION-MAKING AGREEMENT IS TERMINATED IF THE SUPPORTER IS FOUND LIABLE FOR OR SUBJECT TO A SUBSTANTIATED FINDING OF ABUSE, NEGLECT OR EXPLOITATION.
C. A SUPPORTED DECISION-MAKING AGREEMENT MUST BE SIGNED BY THE ADULT WITH A DISABILITY AND THE SUPPORTER IN THE PRESENCE OF TWO OR MORE SUBSCribing witnesses, WHO MUST BE AT LEAST EIGHTEEN YEARS OF AGE, OR A NOTARY PUBLIC.
D. A SUPPORTED DECISION-MAKING AGREEMENT SHALL not be inconsistent with the provisions of this article and shall BE IN SUBSTANTIALLY THE FOLLOWING FORM:
SUPPORTED DECISION-MAKING AGREEMENT
Appointment of Supporter
I, ____________________________, make this agreement of my own
(my printed name)
free will.
I agree and designate that _______________________
(name of supporter)
Name: ________________________________________________________
Address: _____________________________________________________
telePhone Number: ____________________________________________
Email address: _______________________________________________
is my supporter. My supporter may help me with making everyday life decisions relating to the following:
Yes___ No___ obtaining food, clothing, shelter.
Yes___ No___ taking care of my physical health.
Yes___ No___ managing my financial affairs.
My supporter is not allowed to make decisions for me. To help me with my decisions, my supporter may:
1. Help me access, collect or obtain information that is relevant to a decision, including medical, psychological, financial, educational or treatment records.
2. Help me understand my options so I can make an informed decision.
3. Help me communicate my decision to appropriate persons.
Yes___ No___ A release allowing my supporter to see protected health information under the Health Insurance Portability and Accountability Act of 1996 (P.L. 104-191) is attached.
Yes___ No___ A release allowing my supporter to see educational records under the Family Educational Rights and Privacy Act of 1974 (20 United States Code Section 1232g) is attached.
Effective Date of Supported Decision-Making Agreement
This supported decision-making agreement is effective immediately and will continue until _________________ or until
(insert date)
the agreement is terminated by my supporter or me or by operation of law.
Signed this _______ day of ______________________, 20___.
Consent of Supporter
I, ______________________, consent to act as a supporter under
(name of supporter)
this agreement in exchange for the opportunity to meaningfully participate in the life of this person and the person's pursuit of independent living.
_____________________________ ________________________________
(signature of supporter) (printed name of supporter)
Signature
_____________________________ ________________________________
(my signature) (my printed name)
_____________________________ ________________________________
(witness 1 signature) (printed name of witness 1)
_____________________________ ________________________________
(witness 2 signature) (printed name of witness 2)
State of ________________________
County of _______________________
This document was acknowledged before me on _____________________ By_________________________________ and
(date) (name of adult with disability)
___________________________________.
(name of supporter)
_____________________________
Notary Public
My commission expires: _______________________________
WARNING: PROTECTION FOR THE ADULT WITH A DISABILITY
IF A PERSON WHO RECEIVES A COPY OF THIS AGREEMENT OR who IS AWARE OF THE EXISTENCE OF THIS AGREEMENT HAS CAUSE TO BELIEVE THAT THE ADULT WITH A DISABILITY IS BEING ABUSED, NEGLECTED OR EXPLOITED BY THE SUPPORTER, THE PERSON SHALL REPORT THE ALLEGED ABUSE, NEGLECT OR EXPLOITATION TO THE DEPARTMENT OF ECONOMIC security, ADULT PROTECTIVE SERVICES BY CALLING _______________ OR ONLINE AT ___________________.
14-5726. Reliance on agreement; limitation of liability; duty to report
A. A PERSON WHO RECEIVES THE ORIGINAL OR A COPY OF A SUPPORTED DECISION-MAKING AGREEMENT SHALL RELY ON THE AGREEMENT.
B. A PERSON IS NOT SUBJECT TO CRIMINAL OR CIVIL LIABILITY AND HAS NOT ENGAGED IN PROFESSIONAL MISCONDUCT FOR AN ACT OR OMISSION IF THE ACT OR OMISSION IS DONE IN GOOD FAITH AND IN RELIANCE ON A SUPPORTED DECISION‑MAKING AGREEMENT.
C. A PERSON WHO RECEIVES A COPY OF A SUPPORTED DECISION-MAKING AGREEMENT OR who IS AWARE OF THE EXISTENCE OF A SUPPORTED DECISION-MAKING AGREEMENT and who HAS REASONABLE CAUSE TO BELIEVE THAT THE ADULT WITH A DISABILITY IS BEING ABUSED, NEGLECTED OR EXPLOITED BY THE SUPPORTER, THE PERSON SHALL REPORT THE ALLEGED ABUSE, NEGLECT OR EXPLOITATION TO A PEACE OFFICER OR ADULT PROTECTIVE SERVICES WORKER PURSUANT TO SECTION 46-454.