REFERENCE TITLE: health care directives; contact orders

 

 

 

 

State of Arizona

Senate

Fifty-fifth Legislature

First Regular Session

2021

 

SB 1417

 

Introduced by

Senator Barto

 

 

AN ACT

 

Amending Title 36, chapter 32, article 1, Arizona Revised Statutes, by adding section 36‑3211; relating to health care directives.

 

 

(TEXT OF BILL BEGINS ON NEXT PAGE)

 


Be it enacted by the Legislature of the State of Arizona:

Section 1.  Title 36, chapter 32, article 1, Arizona Revised Statutes, is amended by adding section 36-3211, to read:

START_STATUTE36-3211.  Principals; significant relationships; contact orders; definitions

A.  An agent who is appointed under a health care directive shall encourage and allow contact between the principal and other persons who have a significant relationship with the principal.

B.  Notwithstanding subsection A of this section, an agent may limit, restrict or prohibit contact between the principal and any person if the agent reasonably believes that the contact will be detrimental to the principal's health, safety or welfare.

C.  In exercising the agent's powers pursuant to subsections A and B of this section, the agent shall consider the wishes of the principal if the principal has sufficient mental capacity to make an intelligent choice.

D.  A person who has a significant relationship with the principal may petition the court for an order compelling the agent to allow the person to have contact with the principal. The petition shall describe the nature of the relationship between the person and the principal and the type and frequency of contact being requested.  The person has the burden of proving that the person has a significant relationship with the principal and that the requested contact is in the principal's best interest.

E.  A principal may petition the court for an order compelling the agent to allow the principal to have contact with a person who has a significant relationship with the principal. The petition shall describe the nature of the relationship between the person and the principal and the type and frequency of contact being requested.  The principal has the burden of proving that the person has a significant relationship with the principal and that the requested contact is in the principal's best interest.

F.  In determining what, if any, contact between a person and the principal is in the principal's best interest, the court shall consider all factors that are relevant to the principal's physical and emotional well-being, including the following:

1.  The past and present relationship between the principal and the person with whom contact is requested.

2.  if the principal has sufficient mental capacity to make an intelligent choice, The wishes of the principal.

3.  The mental and physical health of the principal and the person with whom contact is requested.

4.  Whether the person with whom contact is requested has committed any of the following:

(a)  act involving domestic violence as defined in section 13‑3601.

(b)  child abuse.

(c)  abuse, neglect or exploitation of a vulnerable adult.

5.  Whether the person with whom contact is requested has abused drugs or alcohol or has been convicted of any drug offense listed in title 13, chapter 34 or a violation of title 28, chapter 4, article 3.

6.  Whether the person with whom contact is requested is listed in the elder abuse central registry pursuant to section 46‑457 or is required to register pursuant to section 13‑3821.

7.  Whether the person with whom contact is requested has been convicted of a violation of section 13‑2907.02 or 13‑2907.04.

G.  On the filing of a petition under subsection D or E of this section, the court may:

1.  Appoint an attorney for the principal if it appears that this is in the principal's best interests.

2.  Appoint an investigator as provided under section 14‑5308 or a physician, or both, to evaluate the principal and submit a written report to the court before the hearing.

3.  Enter any other temporary order that the court determines is necessary and appropriate to protect the wishes or best interests of the principal, including an order exercising the power of a guardian or appointing a temporary guardian as provided under section 14‑5310.

H.  An agent who is appointed under a health care directive, a court‑appointed fiduciary for the principal or a person who has a significant relationship with the principal may petition the court to modify a contact order if a material change in circumstances affecting the principal's health, safety or welfare has occurred since the last contact order was made.  The petition shall be supported by an affidavit alleging the change of circumstances that has occurred since the entry of the last contact order.  The court shall deny the petition unless the court finds that the petition establishes good cause for a hearing, in which case the court shall set a hearing on the petition.  The petition and notice of the hearing on the petition shall be served on all persons to whom notice is required pursuant to section 14‑5309 and on any court‑appointed fiduciary for the principal.

I.  An agent who is appointed under a health care directive, a court‑appointed fiduciary for the principal or a person who has a significant relationship with the principal may file a motion asking the court to temporarily modify or suspend a contact order if a material change in circumstances affecting the principal's health, safety or welfare has occurred since the last contact order was made.  The motion shall be supported by an affidavit alleging the change of circumstances that has occurred since the entry of the last contact order.  The motion shall be filed contemporaneously with or after the filing of a petition to modify the prior contact order. The motion shall state whether the petitioner requests that the prior contact order be modified or suspended with or without notice to affected persons.

J.  The court may temporarily modify or suspend a contact order without notice only if both of the following apply:

1.  It clearly appears from specific facts shown in the motion or affidavit that immediate and irreparable injury, loss or damage likely will result if the order is not issued before the affected persons can be heard in opposition.

2.  The moving party or the moving party's attorney certifies to the court in writing the efforts, if any, that the moving party or the moving party's attorney has made to give the notice or the reasons supporting the claim that notice should not be required.

K.  If the court grants a motion to temporarily modify or suspend a contact order without notice, the court shall set a hearing on the motion.

L.  An order temporarily modifying or suspending a contact order that is granted without notice shall state the injury, loss or damage that would likely have occurred if the order were not issued before giving the affected persons the opportunity to be heard in opposition.  The temporary order expires at the date and time set for the hearing on the motion unless the temporary order is extended by the court for good cause.

M.  The moving party shall personally serve a copy of the order and notice of the hearing on the person whose contact with the principal has been modified or suspended. The moving party shall have a copy of the order served on any court‑appointed fiduciary for the principal and all persons affected by the order as soon as practicable after issuance of the order in the manner prescribed in section 14‑5309 or as otherwise ordered by the court.

N.  On notice and a hearing, the court may enter appropriate orders to safeguard the wishes of the principal if those wishes can be reasonably ascertained.  If the court is unable to determine the wishes of the principal, the court may enter appropriate orders to safeguard the principal's best interest. These orders may Appoint a temporary or permanent guardian and may Assess court costs, reasonable attorney fees and the cost of any professionals appointed to evaluate the principal against a party found to have proceeded in bad faith or to have acted unreasonably.

O.  For the purposes of this section:

1.  "Abuse" in relation to a vulnerable adult has the same meaning prescribed in section 46‑451.

2.  "Child abuse" means abuse as defined in section 8‑201 of an individual who is under eighteen years of age.

3.  "Exploitation" has the same meaning prescribed in section 46‑451.

4.  "Neglect" has the same meaning prescribed in section 46‑451.END_STATUTE