SB 1291
Initials JL Page 1 Judiciary
ARIZONA HOUSE OF REPRESENTATIVES
Fifty-sixth Legislature
First Regular Session
Senate: JUD DPA 5-2-0-0 | 3
rd
Read DPA 21-7-2-0-0
SB 1291: guardianship; conservatorship; policies; procedures
S/E: conservatorship; guardianship; policies; procedures
Sponsor: Senator Kavanagh, LD 3
Committee on Judiciary
Overview
Makes various changes and additions to statute relating the policies and procedures applicable
to judicial proceedings under A.R.S. Title 14, including those for the appointment of guardians
and conservators or the entering of protective orders.
History
A person can become a guardian of a minor by acceptance of a testamentary appointment or
upon appointment by a court. A person can become a guardian of an incapacitated person by a
parental or spousal appointment or on appointment by a court. In either case, the guardianship
continues until it is terminated, without regard to the location of the guardian or the ward (A.R.S.
§§ 14-5201 and 14-5301.02). An incapacitated person is a 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 he lacks sufficient
understanding or capacity to make or communicate responsible decisions concerning his person
(A.R.S. § 14-5101).
An alleged incapacitated person or any person interested in that person's affairs or welfare may
petition a court for the appointment of a guardian or for any other appropriate protective order.
The petition must include a number of items enumerated in statute, and the court must follow
various procedures in considering the petition (A.R.S. § 14-5303).
A guardian must encourage and allow contact between the ward and other persons who have a
significant relationship with the ward. A guardian may limit, restrict or prohibit contact between
the ward and any person if the guardian reasonably believes that the contact will be detrimental
to the ward's health, safety or welfare (A.R.S. § 14-5316).
The court may appoint a conservator or make another protective order on petition and after notice
and a hearing for cause as follows:
1) In relation to the estate and affairs of a minor if the court determines that a minor owns
money or property that requires management or protection that cannot otherwise be
provided, or the minor has or may have affairs that may be jeopardized or prevented by
minority or that funds are needed for the minor's support and education and that protection
is necessary or desirable to obtain or provide funds; or
2) In relation to the estate and affairs of a person if the court finds that:
a) The person is unable to manage the person's estates and affairs due to mental illness,
mental deficiency, mental disorder, physical illness or disability, chronic use of drugs,
chronic intoxication, confinement, detention by a foreign power or disappearance; and
b) The person has property that will be wasted or dissipated unless proper management
is provided, or that funds are needed for the support, care and welfare of the person SB 1291
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or those entitled to be supported by the person and that protection is necessary or
desirable to obtain or provide funds (A.R.S. § 14-5401).
Like for guardianships, statute outlines various items that must be included in a petition for the
appointment of a conservator or for any other appropriate protective order, which may be filed by
a person allegedly in need of protection; any person who is interested in that person's estate or
affairs, including that person's parent, guardian or custodian; or any person who would be
adversely affected by lack of effective management of that person's estate and affairs (A.R.S. §
14-5404).
If duly demanded, a party is entitled to a jury trial in any proceeding under A.R.S. Title 14 in which
any controverted question of fact arises as to which any party has a constitutional right to a jury
trial. If there is no right to a jury trial, or the right is waived, the court in its discretion may call a
jury to decide any issue of fact, in which case the verdict is advisory only (A.R.S. § 14-1306).
General notice requirements also apply to proceedings under Title 14 where other more specific
notice requirements are not otherwise provided (A.R.S. § 14-1401).
Provisions
1. Requires a court to provide notice to the parties in proceedings under A.R.S. Title 14 of their
constitutional right to a trial by jury that also advises them of any limitations and requirements
applicable to the right. (Sec. 1)
2. Authorizes a court to order a petitioner who intentionally fails to provide notice of a hearing as
required by A.R.S. Title 14 to any interested person or that person's attorney to pay damages,
including reasonable attorney fees and costs, incurred by the interested person as a result of
the failure to provide notice. (Sec. 2)
3. Mandates that a court make efforts to resolve proceedings brought under A.R.S. Title 14,
Chapter 5 (regulating the protection of persons under disability and their property) in as
efficient and inexpensive manner as possible, including resolution by alternative means when
possible. (Sec. 3)
4. Enumerates several minimal duties that an alleged incapacitated person's attorney must fulfill
within 7 days before the initial hearing on the petition for the appointment of a permanent
guardian or conservator, including:
a) Interviewing the alleged incapacitated person;
b) Informing the alleged incapacitated person of various pieces of information, including:
i) The right to a jury trial pursuant to A.R.S. § 14-1306;
ii) The right to select an attorney of the person's choosing;
iii) The right of the alleged incapacitated person to appear in court and have any person
the alleged incapacitated person wishes to be present with them;
iv) A review of the court process, timelines and expected future proceedings;
v) A detailed list and explanation of the duties the guardian or conservator will assume
for the alleged incapacitated person;
vi) If a guardianship has been requested, the alleged incapacitated person's right to
maintain relationships pursuant to A.R.S. § 14-5316. (Sec. 4)
5. Requires the attorney, at the initial hearing on the petition for appointment, to either attest to
the court that the attorney has fulfilled the above requirements or to provide an explanation
as to why the attorney has been unable to comply with those requirements. (Sec. 4)
6. Adds the following to the list of items that must be included in a petition for the appointment
of a guardian or for any other appropriate protective order:
☐ Prop 105 (45 votes) ☐ Prop 108 (40 votes) ☐ Emergency (40 votes) ☐ Fiscal Note SB 1291
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a) Whether the alleged incapacitated person is the principal under a health care power of
attorney, and, if so, a copy of that document must be attached to the petition; and
b) Whether the alleged incapacitated person is the principal under a durable power of
attorney in which the alleged incapacitated person has nominated someone to serve as
guardian, and, if so, a copy of that document must be attached to the petition. (Sec. 5)
7. Prohibits a guardian from limiting, restricting or prohibiting contact between the ward and any
person the ward wishes to see unless the guardian reasonably believes that the contact will
be detrimental to the ward's health, safety or welfare. (Sec. 6)
8. Stipulates that a guardian, in a proceeding regarding a petition by either a ward or a person
who has a significant relationship with a ward for an order compelling the guardian to allow
the person to have contact with a ward, has the burden of proving by clear and convincing
evidence that the requested contact will be detrimental to the ward's health, safety or welfare,
and requires a hearing on the petition to be heard within 10 days of the petition being received
by the court. (Sec. 6)
9. Allows a court that finds that a guardian has unreasonably denied contact between a ward
and a person who has a significant relationship with the ward to do either, or both, of the
following:
a) Remove the guardian; and/or
b) Order the guardian to personally pay some or all of the reasonable attorney fees and
expenses incurred by the person or the ward. (Sec. 6)
10. Requires a guardian, within 10 court days after entry of an order appointing a guardian for an
adult, to provide all parties to the matter with written notice of the guardian's powers and duties
under A.R.S. § 14-5316. (Sec. 6)
11. Mandates that a court make certain findings in existing statute for the appointment of a
conservator or other protective order in relation to the estate and affairs of a person by clear
and convincing evidence. (Sec. 7)
12. Prohibits a court from appointing a conservator or enter a protective order in relation to the
estate and affairs of a person unless the subject of the protective order has appeared before
the court either in person or by virtual or remote means. (Sec. 7)
13. If the subject person is unable t appear as prescribed above, requires the petitioner to provide
evidence to the court of the person's incapacity. (Sec. 7)
14. Requires a court to weigh the evidence, request additional evidence if necessary and
document all evidence in the court record in a proceeding regarding appointment of a
conservator or other protective order in relation to the estate and affairs of a person. (Sec. 7)
15. Mandates that a court take all necessary actions to ensure that the constitutional rights of a
person subject to a protective order are protected. (Sec. 7)
16. Adds the following items that must be including in petition by a person for the appointment of
a conservator or other protective order:
a) Whether the person allegedly in need of protection is the principal under a durable power
of attorney, and, if so, a copy of that durable power attorney must be attached to the
petition;
b) Whether the person allegedly in need of protection is the principal under a health care
power of attorney in which the person nominates a conservator, and, if so, a copy of that
health care power of attorney must be attached to the petition; and
c) Whether the person allegedly in need of protection has a present vested interest in a trust,
and, if so, the name of the trust and the current trustee of the trust. (Sec. 8)