Bill Text: AZ HB2769 | 2020 | Fifty-fourth Legislature 2nd Regular | Engrossed
Bill Title: Supported decision making; supporter obligations
Spectrum: Bipartisan Bill
Status: (Engrossed - Dead) 2020-03-03 - Senate read second time [HB2769 Detail]
Download: Arizona-2020-HB2769-Engrossed.html
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House Engrossed |
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State of Arizona House of Representatives Fifty-fourth Legislature Second Regular Session 2020
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HOUSE BILL 2769 |
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AN ACT
amending section 14-1201, arizona revised statutes; amending title 14, chapter 5, arizona revised statutes, by adding article 9; relating to supported decision-making agreements.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Section 14-1201, Arizona Revised Statutes, is amended to read:
14-1201. Definitions
In this title, unless the context otherwise requires:
1. "Agent" includes an attorney‑in‑fact under a durable or nondurable power of attorney, a person who is authorized to make decisions concerning another person's health care and a person who is authorized to make decisions for another person under a natural death act.
2. "Application" means a written request to the registrar for an order of informal probate or appointment under chapter 3, article 3 of this title.
3. "Basis for compensation" means an hourly rate, a fixed fee or a contingency fee agreement and reimbursable costs.
4. "Beneficiary", as it relates to a trust beneficiary, includes a person who has any present or future interest, vested or contingent, and includes the owner of an interest by assignment or other transfer. As it relates to a charitable trust, beneficiary includes any person entitled to enforce the trust. As it relates to a beneficiary of a beneficiary designation, beneficiary refers to a beneficiary of an insurance or annuity policy, an account with pay on death designation, a security registered in beneficiary form or a pension, profit sharing, retirement or similar benefit plan, or any other nonprobate transfer at death. As it relates to a beneficiary designated in a governing instrument, beneficiary includes a grantee of a deed, a devisee, a trust beneficiary, a beneficiary of a beneficiary designation, a donee, appointee or taker in default of a power of appointment and a person in whose favor a power of attorney or a power held in any person, fiduciary or representative capacity is exercised.
5. "Beneficiary designation" refers to a governing instrument naming a beneficiary of an insurance or annuity policy, of an account with pay on death designation, of a security registered in beneficiary form or of a pension, profit sharing, retirement or similar benefit plan, or any other nonprobate transfer at death.
6. "Certified paper original" means a tangible medium that contains both the text of an electronic will and any self-proving affidavit concerning the electronic will and that is accompanied by an affidavit that is executed pursuant to section 14‑2523.
7. "Child" includes a person who is entitled to take as a child under this title by intestate succession from the parent whose relationship is involved. Child excludes a person who is only a stepchild, a foster child, a grandchild or a more remote descendant.
8. "Claims", in respect to estates of decedents and protected persons, includes liabilities of the decedent or the protected person, whether arising in contract, in tort or otherwise, and liabilities of the estate that arise at or after the death of the decedent or after the appointment of a conservator, including funeral expenses and expenses of administration. Claims do not include estate or inheritance taxes or demands or disputes regarding title of a decedent or a protected person to specific assets alleged to be included in the estate.
9. "Community property" means that property of a husband and wife that is acquired during the marriage and that is community property as prescribed in section 25‑211.
10. "Conservator" means a person who is appointed by a court to manage the estate of a protected person.
11. "Court" means the superior court.
12. "Dependent child" means a minor child whom the decedent was obligated to support or an adult child who was in fact being supported by the decedent at the time of the decedent's death.
13. "Descendant" means all of the decedent's descendants of all generations, with the relationship of parent and child at each generation.
14. "Devise", when used as a noun, means a testamentary disposition of real or personal property and, when used as a verb, means to dispose of real or personal property by will.
15. "Devisee" means a person designated in a will to receive a devise. For the purposes of chapter 3 of this title, in the case of a devise to an existing trust or trustee, or to a trustee on trust described by will, the trust or trustee is the devisee and the beneficiaries are not devisees.
16. "Disability" means cause for a protective order as described in section 14‑5401.
17. "Distributee" means any person who has received property of a decedent from that person's personal representative other than as a creditor or purchaser. Distributee includes a testamentary trustee only to the extent of distributed assets or increment that remains in that person's hands. A beneficiary of a testamentary trust to whom the trustee has distributed property received from a personal representative is a distributee of the personal representative. For the purposes of this paragraph, "testamentary trustee" includes a trustee to whom assets are transferred by will, to the extent of the devised assets.
18. "Electronic" means having electrical, digital, magnetic, optical, electromagnetic or similar capabilities.
19. "Electronic record" means a record that is created, generated, sent, communicated, received or stored by electronic means.
20. "Electronic signature" means an electronic method or process that does both of the following:
(a) Is attached to or logically associated with an electronic record and that is executed or adopted by a person with the intent to sign the electronic record.
(b) Uses a security procedure that allows a determination that the electronic signature was all of the following:
(i) Unique to the person using it.
(ii) Capable of verification.
(iii) Under the sole control of the person making the electronic signature.
(iv) Linked to the electronic record to which the electronic signature relates in a manner so that if the electronic record is changed the electronic signature is invalidated.
21. "Electronic will" means a testamentary instrument that is executed and maintained on an electronic medium and that is executed in compliance with section 14‑2518.
22. "Estate" includes the property of the decedent, trust or other person whose affairs are subject to this title as originally constituted and as it exists from time to time during administration. As it relates to a spouse, the estate includes only the separate property and the share of the community property belonging to the decedent or person whose affairs are subject to this title.
23. "Exempt property" means that property of a decedent's estate that is described in section 14‑2403.
24. "Fiduciary" includes a personal representative, guardian, conservator and trustee.
25. "Foreign personal representative" means a personal representative who is appointed by another jurisdiction.
26. "Formal proceedings" means proceedings that are conducted before a judge with notice to interested persons.
27. "Governing instrument" means a deed, will, trust, insurance or annuity policy, account with pay on death designation, security registered in beneficiary form, pension, profit sharing, retirement or similar benefit plan, instrument creating or exercising a power of appointment or a power of attorney or supported decision-making agreement or a dispositive, appointive or nominative instrument of any similar type.
28. "Guardian" means a person who has qualified as a guardian of a minor or incapacitated person pursuant to testamentary or court appointment but excludes a person who is merely a guardian ad litem.
29. "Guardian ad litem" includes a person who is appointed pursuant to section 14‑1408.
30. "Heirs", except as controlled by section 14‑2711, means persons, including the surviving spouse and the state, who are entitled under the statutes of intestate succession to the property of a decedent.
31. "Incapacitated person" has the same meaning prescribed in section 14‑5101.
32. "Informal proceedings" means those proceedings conducted without notice to interested persons by an officer of the court acting as a registrar for probate of a will or appointment of a personal representative.
33. "Interested person" includes any trustee, heir, devisee, child, spouse, creditor, beneficiary, person holding a power of appointment and other person who has a property right in or claim against a trust estate or the estate of a decedent, ward or protected person. Interested person also includes a person who has priority for appointment as personal representative and other fiduciaries representing interested persons. Interested person, as the term relates to particular persons, may vary from time to time and must be determined according to the particular purposes of, and matter involved in, any proceeding.
34. "Issue" of a person means descendant as defined in this section.
35. "Joint tenants with the right of survivorship" and "community property with the right of survivorship" includes co‑owners of property held under circumstances that entitle one or more to the whole of the property on the death of the other or others but excludes forms of co‑ownership registration in which the underlying ownership of each party is in proportion to that party's contribution.
36. "Lease" includes any oil, gas or other mineral lease.
37. "Letters" includes letters testamentary, letters of guardianship, letters of administration and letters of conservatorship.
38. "Minor" means a person who is under eighteen years of age.
39. "Mortgage" means any conveyance, agreement or arrangement in which property is encumbered or used as security. Mortgage does not include leases or easements.
40. "Nonresident decedent" means a decedent who was domiciled in another jurisdiction at the time of the decedent's death.
41. "Organization" means a corporation, limited liability company, business trust, estate, trust, partnership, joint venture, association, government or governmental subdivision or agency or any other legal or commercial entity.
42. "Original will" means either an original paper will or a certified paper original of an electronic will.
43. "Paper will" means a testamentary instrument that is executed and maintained on a tangible medium and that is executed in compliance with section 14‑2502 or 14‑2503.
44. "Parent" includes any person entitled to take, or who would be entitled to take if the child died without a will, as a parent under this title by intestate succession from the child whose relationship is in question and excludes any person who is only a stepparent, foster parent or grandparent.
45. "Payor" means a trustee, insurer, business entity, employer, government, governmental agency or subdivision or any other person who is authorized or obligated by law or a governing instrument to make payments.
46. "Person" means an individual or an organization.
47. "Personal representative" includes an executor, an administrator, a successor personal representative, a special administrator and persons who perform substantially the same function under the law governing their status. A general personal representative excludes a special administrator.
48. "Petition" means a written request to the court for an order after notice.
49. "Proceeding" includes action at law and suit in equity.
50. "Property" has the same meaning prescribed in section 14‑10103.
51. "Protected person" has the same meaning prescribed in section 14‑5101.
52. "Protective proceeding" has the same meaning prescribed in section 14‑5101.
53. "Qualified custodian" means a person who fulfills the requirements of section 14‑2520.
54. "Registrar" means the official of the court who is designated to perform the functions of registrar as provided in section 14‑1307.
55. "Security" includes any note, stock, treasury stock, bond, debenture, evidence of indebtedness, certificate of interest or participation in an oil, gas or mining title or lease or in payments out of production under that title or lease, collateral trust certificate, transferable share or voting trust certificate and, in general, includes any interest or instrument commonly known as a security, or any certificate of interest or participation, any temporary or interim certificate, receipt or certificate of deposit for, or any warrant or right to subscribe to or purchase, any of these securities.
56. "Separate property" means that property of a husband or wife that is the spouse's separate property as defined in section 25‑213.
57. "Settlement", in reference to a decedent's estate, includes the full process of administration, distribution and closing.
58. "Special administrator" means a personal representative as described by sections 14‑3614 through 14‑3618.
59. "State" has the same meaning prescribed in section 14‑10103.
60. "Successor personal representative" means a personal representative, other than a special administrator, who is appointed to succeed a previously appointed personal representative.
61. "Successors" means persons, other than creditors, who are entitled to property of a decedent under a will or this title.
62. "Supervised administration" refers to the proceedings described in chapter 3, article 5 of this title.
63. "Survive" means that a person has neither predeceased an event, including the death of another person, nor is deemed to have predeceased an event under section 14‑2104 or 14‑2702.
64. "Tangible medium" means a medium on which information may be inscribed by writing, typing, printing or similar means and that is perceivable by reading directly from the medium on which the information is inscribed.
65. "Testacy proceeding" means a proceeding to establish a will or determine intestacy.
66. "Testator" includes a person of either sex.
67. "Trust" includes an express trust, private or charitable, with any additions, wherever and however created. Trust also includes a trust created or determined by judgment or decree under which the trust is to be administered in the manner of an express trust. Trust excludes other constructive trusts and excludes resulting trusts, conservatorship, personal representatives, trust accounts, custodial arrangements pursuant to chapter 7, article 7 of this title, business trusts providing for certificates to be issued to beneficiaries, common trust funds, voting trusts, security arrangements, liquidation trusts and trusts for the primary purpose of paying debts, dividends, interest, salaries, wages, profits, pensions or employee benefits of any kind, trusts created by a city or town for the payment of medical insurance, health care benefits or expenses, long-term or short-term disability, self insurance reserves and similar programs administered by a city or town, legal defense trusts and any arrangement under which a person is nominee or escrowee for another.
68. "Trustee" includes an original, additional or successor trustee, whether or not appointed or confirmed by the court.
69. "Ward" has the same meaning prescribed in section 14‑5101.
70. "Will" includes a codicil and any testamentary instrument that merely appoints an executor, revokes or revises another will, nominates a guardian or expressly excludes or limits the right of an individual or class to succeed to property of the decedent passing by intestate succession. A will may be a paper will or an electronic will.
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 with a disability 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. "interested person" means any person who is interested in the affairs or welfare of an adult who has entered into a supported decision‑making agreement.
4. "intimidation" includes threatening to deprive an adult of food, nutrition, shelter or necessary medication or medical treatment.
5. "SUPPORTED DECISION-MAKING" MEANS A PROCESS OF SUPPORTING AND ACCOMMODATING AN ADULT TO ENABLE THE ADULT TO MAKE LIFE DECISIONS, INCLUDING DECISIONS RELATED TO WHERE THE ADULT WANTS TO LIVE, THE SERVICES, SUPPORT 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.
6. "SUPPORTED DECISION-MAKING AGREEMENT" means AN AGREEMENT BETWEEN AN ADULT and A SUPPORTER that is ENTERED INTO pursuant to THIS ARTICLE.
14-5722. Supported decision-making agreements; scope; rights and obligations; intimidation; deception; petition; termination; form
A. AN ADULT, WITHOUT UNDUE INFLUENCE OR COERCION, MAY VOLUNTARILY ENTER INTO A SUPPORTED DECISION-MAKING AGREEMENT WITH A SUPPORTER UNDER WHICH THE ADULT AUTHORIZES THE SUPPORTER TO DO ANY OR ALL OF THE FOLLOWING:
1. PROVIDE SUPPORTED DECISION-MAKING, INCLUDING assisting the adult IN UNDERSTANDING THE OPTIONS, RESPONSIBILITIES AND CONSEQUENCES OF THE ADULT'S LIFE DECISIONS, WITHOUT MAKING THOSE DECISIONS ON BEHALF OF THE ADULt.
2. ASSIST THE ADULT 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 IN UNDERSTANDING THE INFORMATION DESCRIBED IN paragraph 2 of this subsection.
4. ASSIST THE ADULT IN COMMUNICATING THE ADULT'S DECISIONS TO APPROPRIATE PERSONS.
b. A SUPPORTER IS NOT A SURROGATE DECISION MAKER FOR THE ADULT AND DOES NOT HAVE THE AUTHORITY TO SIGN LEGAL DOCUMENTS ON BEHALF OF THE ADULT OR BIND THE ADULT TO A LEGAL AGREEMENT.
c. the supported decision-making agreement shall set forth the rights, roles, duties, limitations and obligations of both the adult and the supporter who are entering into the agreement.
d. if the supporter acts with intimidation or deception in procuring the supported decision-making agreement or any authority provided in the supported decision-making agreement, the supporter is subject to criminal prosecution and civil penalties.
E. The supporter is prohibited from receiving compensation as a result of the supporter's duties under a supported-decision making agreement. The supporter shall act without self-interest and shall avoid conflicts of interest.
F. an interested person may file a verified petition with the superior court to determine the validity of the supported decision-making agreement.
G. A SUPPORTED DECISION-MAKING AGREEMENT MUST BE SIGNED BY THE ADULT 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.
H. A SUPPORTED DECISION-MAKING AGREEMENT EXTENDS UNTIL:
1. TERMINATED IN WRITING BY EITHER PARTY OR BY THE TERMS OF THE AGREEMENT.
2. at any time the adult becomes an incapacitated person as defined in section 14-5101.
3. On the appointment of a guardian pursuant to article 3 of this chapter.
i. the supported decision-making agreement shall be in substantially the following form:
supported Decision-Making Agreement
This agreement is governed by the Arizona Supported Decision-Making agreement statute section 14-5722, Arizona Revised Statutes. For the purposes of this agreement, "Decision Maker" means an adult with a disability who executes an agreement for the purpose of designating an individual to serve as the Decision Maker's "Supporter" when the Decision Maker makes certain decisions that are listed in the agreement.
Purpose of Agreement
The purpose of the supported decision-making agreement is to support and accommodate a decision maker to make informed decisions and choices about certain aspects of the adult's daily life.
Role of Supporter
to assist a Decision maker, a supporter may:
1. assist the Decision Maker with getting information to be able to understand available choices.
2. assist the Decision Maker in UNDERSTANDING choices so the Decision Maker can make the best personal decisions.
3. assist the Decision Maker in communicating decisions to the right PEOPLE and organizations.
Revocation or Termination of Agreement
A. The decision maker or the supporter may revoke this agreement at any time.
B. This agreement terminates as a matter of law at any time the Decision Maker becomes an incapacitated person as defined in Section 14-5101, Arizona Revised Statutes.
C. This agreement terminates as a matter of law on the appointment of a guardian for any reason or purpose pursuant to title 14, chapter 5, article 3, Arizona Revised Statutes.
D. If either the decision maker or supporter has questions about the agreement, the decision maker or supporter should speak with a lawyer before signing this supported decision-making agreement.
Important Information For Supporters about
the Limits to this Agreement
A. You may NOT make a decision for or on behalf of the Decision Maker.
B. Neither you nor any organization for whom you are employed or serve as a volunteer may receive any financial support, remuneration or compensation, either directly or indirectly, for or related to your services and role as a Supporter to the Decision Maker.
C. When you agree to provide support to an adult under this Supported Decision-Making Agreement, you have a duty to and you SHALL:
1. Act in good faith.
2. Act with loyalty to the Decision Maker.
3. Act without self-interest.
4. Avoid conflicts of interest.
5. Stop serving as a Supporter at any time that you question the capacity of the Decision Maker to continue making decisions even with your support.
D. Stop serving as a Supporter at any time that the supported decision-making agreement is revoked by the Decision Maker or you, or the agreement ends as a matter of law.
E. Respect the Decision Maker's relationships with friends and family members and NOT attempt to isolate or alienate the Decision Maker from those friends and family members.
APPOINTMENT OF SUPPORTER
I ______________________________________, (Name of adult, (the "Decision Maker")), am of sound mind and enter into this agreement voluntarily.
My disabilities are: (describe briefly)
_________________________________________________________________________________________________________________________________________________________________________________________.
I choose _____________________________________________________ to be my Supporter.
Supporter's Address:__________________________________________
Supporter's telePhone Number:_________________________________
Supporter's Email Address:____________________________________
SUPPORTER'S ROLE AND LIMITATIONS ON THAT ROLE
My Supporter may help me with life decisions about each of the following which I have marked with an "x" (check those that apply):
Yes ___ No ___ obtaining food, clothing and a place to live.
Yes ___ No ___ my physical health and services.
Yes ___ No ___ my mental health and services.
Yes ___ No ___ managing my money or property.
Yes ___ No ___ getting an education or other training.
Yes ___ No ___ choosing and maintaining my services and supports.
Yes ___ No ___ finding a job.
Yes ___ No ___ Other:
Yes ___ No ___ My Supporters may see my private health information under the Health Insurance Portability and Accountability Act of 1996 (P.L. 104-191) if I first choose to provide a signed release.
Yes ___ No ___ My Supporters may see my educational records under the Family Educational Rights and Privacy Act of 1974 (20 United States Code Section 1232g) if I first choose to provide a signed release.
This agreement is effective when signed and will continue until ___________ (date) or until my Supporter or I end the agreement or the agreement ends by operation of law, including the appointment of a guardian for me.
DECISION MAKER'S SIGNATURE
Signed this __________ (day) of __________________ (month), ________ (year)
_____________________________ _______________________________
(Signature of decision maker) (Printed Name of decision maker)
CONSENT OF SUPPORTER
I (Name of Supporter), _______________________________ consent to act as a Supporter under this agreement.
____________________________ _____________________________
(Signature of Supporter) (Printed Name of Supporter)
This agreement must be signed in front of two
witnesses or a Notary Public
____________________________ _____________________________
(Witness 1 Signature) (Printed Name of Witness 1)
____________________________ _____________________________
(Witness 2 Signature) (Printed Name of Witness 2)
OR
Notary Public
State of ____________________
County of ___________________
This document was acknowledged before me on __________(date) by
_____________________________ _____________________________
(Name of decision maker) (Name of Supporter)
_____________________________ _____________________________
(Signature of Notary) (Printed Name of Notary)
(Seal, if any, of notary)
My commission expires: _________________
WARNING: PROTECTION FOR THE DECISION MAKER WITH A DISABILITY
If a person who receives a copy of this Supported Decision‑Making Agreement or who is aware of the existence of this agreement has cause to believe that the decision maker 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's online reporting system by calling the Adult Protective Services, Adult Abuse Hotline or by calling the local police department.
Sec. 3. Effective date
This act is effective from and after December 31, 2020.
