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ARIZONA STATE SENATE
Fifty-Fifth Legislature, Second Regular Session
incompetent defendants; public safety guardianship
Purpose
Establishes the Arizona Office of Public Safety Guardianships (Office) and the Arizona Safety Facility Service (Service) to oversee public safety guardianships for incapacitated incompetent persons.
Background
If the court finds that a defendant is incompetent to stand trial and that there is no substantial probability that the defendant will regain competency within 21 months after the date of the original finding of incompetency, any party may request that the court: 1) remand the defendant to an evaluating agency for the institution of civil commitment proceedings; 2) appoint a guardian; or 3) release the defendant from custody and dismiss the charges against the defendant without prejudice. The court may retain jurisdiction over the defendant until the defendant is committed for treatment or a guardian is appointed (A.R.S. § 13-4517).
An alleged incapacitated person or any person interested in that person's affairs or welfare may petition for the appointment of a guardian or for any other protective order. The petition is required to include: 1) the interest of the petitioner; 2) as specified, the name, age, residence and address of the alleged incapacitated person, the person whose appointment is sought, the conservator, if any, of the alleged incapacitated person and the nearest relative of the alleged incapacitated person known to the petitioner; 4) a general statement of the property of the alleged incapacitated person; 5) the reason why appointment of a guardian or any other protective order is necessary; 6) the type of guardianship requested; 7) the court and case number for an action relating to legal decision-making, parenting time or visitation orders in specified circumstances; and 10) whether the appointment of a guardian is necessary due solely to the physical incapacity of the alleged incapacitated person (A.R.S. § 14-5303).
Incapacitated person means any person who is impaired by reason of mental illness, mental deficiency, mental disorder, physical illness or disability, chronic use of drugs, chronic intoxication or other cause, except minority, to the extent that the person lacks sufficient understanding or capacity to make or communicate responsible decisions concerning the person (A.R.S. § 14-5101).
There is no anticipated fiscal impact to the state General Fund associated with this legislation.
Provisions
Arizona Office of Public Safety Guardianships
1. Establishes the Office to initiate and administer public safety guardianships.
2. States that the Office has priority over any other person seeking guardianship for an incapacitated incompetent person.
3. Requires the Governor to appoint the Director of the Office (Director), who serves at the pleasure of the Governor and is eligible to receive compensation.
4. Requires the Director and all administrators to be licensed fiduciaries.
5. Allows the Director to hire staff and secure office space and other equipment and other services that are necessary to carry out the duties of the Office.
Guardianship Petition and Procedures
6. Requires the Office to prepare and file a petition for a public safety guardianship of an incapacitated incompetent person if the court initiates proceedings for an incompetent defendant with no substantial probability that the defendant will regain competency within 21 months after the date of the original finding of incompetency.
7. States that unless otherwise required, existing procedures governing protection of persons under disability apply to public safety guardianships.
8. Requires a petition for a public safety guardianship, in addition to existing information requirements for guardian petitions, to include a summary of the incapacitated incompetent person's current criminal case and relevant past criminal history.
9. Requires a court-appointed psychiatrist, on filing the petition, to examine the incapacitated incompetent person and file a report with the court which includes outlined petition information, an assessment of whether the incapacitated incompetent person is likely to commit violent acts or cause serious physical harm to another person in the future.
10. States that the Office is responsible for the costs of the psychiatrist's examination and report and a court-appointed investigator.
11. Requires the court, when considering whether to appoint the Office as a guardian, to consider the incapacitated incompetent person's welfare and potential to commit violent acts or cause serious physical harm to another person in the future if a public safety guardianship is not ordered.
12. Allows the court to appoint the Office if the court finds by clear and convincing evidence that:
a) the incompetent person is incapacitated;
b) the appointment is necessary to provide for the demonstrated needs of the incapacitated incompetent person;
c) the incapacitated incompetent person's needs cannot be met by less restrictive means, including the use of appropriate technological assistance;
d) the incapacitated incompetent person is likely to commit violent acts or cause serious physical harm to another person in the future if a public safety guardianship is not ordered;
e) the incapacitated incompetent person is likely to be in need of inpatient mental health care and treatment within the period of the public safety guardianship.
13. Entitles an incapacitated incompetent person to assistance of counsel at any proceeding, and requires the court to appoint counsel if the incapacitated incompetent person is indigent.
14. Allows a court, if it initiates proceedings related to guardianship or public safety guardianships, to order a sheriff to retain custody of the defendant during that process.
15. Allows a court to extend the order during the time that is required for the court to explore options for the defendant if the court does not order guardianship or public safety guardianship.
16. States that a public safety guardianship includes all of the powers afforded to a guardian of an incapacitated person, including the power to place the incapacitated incompetent person in inpatient psychiatric facilities licensed by the Department of Health Services for the duration of the public safety guardianship.
17. Requires the Office to consider the incapacitated incompetent person's best interests as well as public safety when considering placement.
Arizona Safety Facility Service
18. Establishes the Service.
19. Requires the Governor to appoint the Administrator of the Service, who serves at the pleasure of the Governor and is eligible to receive compensation.
20. Requires the Service, either directly or by contract with a private entity or other governmental agency, to provide a program to treat, house and care for incapacitated incompetent persons who are under public safety guardianships.
21. Requires the program to include inpatient services, outpatient services and housing for persons who receive outpatient services.
22. Requires incapacitated incompetent persons who are admitted to the program to be placed at appropriate levels of care and housing to provide appropriate services and protect the public.
23. Requires the Service or a contractor providing the program, on request of the Office, to admit incapacitated incompetent persons to the program.
24. Allows the Office to withdraw an incapacitated incompetent person from the program if the Office determines that such placement is no longer appropriate considering the incapacitated incompetent person's best interests as well as public safety.
25. Requires an incapacitated incompetent person's private insurance or public benefits, if applicable, to pay the costs of the of admission to the program.
26. Requires the Service to pay the cost of the program if the incapacitated incompetent person does not have applicable private insurance or public benefits.
27. Requires the Office, the Service or a contractor providing the program to take all reasonable steps to facilitate the incapacitated incompetent person's coverage by private insurance or public benefits that may be applied to the costs of admission to the program.
Office Sunset
28. Terminates the Office on July 2, 2032, and repeals statute governing public safety guardianships on January 1, 2033.
Miscellaneous
29. Contains a purpose statement.
30. Becomes effective on the general effective date.
Prepared by Senate Research
February 8, 2022
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