Bill Text: AZ SB1390 | 2021 | Fifty-fifth Legislature 1st Regular | Chaptered
Bill Title: Guardian ad litem; protective proceeding
Spectrum: Partisan Bill (Republican 1-0)
Status: (Passed) 2021-04-16 - Chapter 248 [SB1390 Detail]
Download: Arizona-2021-SB1390-Chaptered.html
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Senate Engrossed
guardian ad litem; protective proceeding |
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State of Arizona Senate Fifty-fifth Legislature First Regular Session 2021
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CHAPTER 248
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SENATE BILL 1390 |
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AN ACT
Amending section 14-1105, Arizona Revised Statutes; providing for transferring and renumbering; amending title 14, chapter 1, article 4, Arizona Revised Statutes, by adding a new section 14-1408; amending sections 14-5314, 14-5414 and 14-5419, Arizona Revised Statutes; amending section 14-10302, Arizona Revised Statutes, as transferred and renumbered; amending section 14-12102, Arizona Revised Statutes; relating to protection of persons under disability and their property.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Section 14-1105, Arizona Revised Statutes, is amended to read:
14-1105. Remedies for unreasonable conduct; definitions
A. If the court finds that a decedent's estate or trust has incurred professional fees or expenses as a result of unreasonable conduct, the court may order the person who engaged in the conduct or the person's attorney, or both, to pay the decedent's estate or trust for some or all of the fees and expenses as the court deems just under the circumstances.
B. In a guardianship or conservatorship case, if the court finds that a ward or protected person has incurred professional fees or expenses as a result of unreasonable conduct, the court may order the person who engaged in the conduct or the person's attorney, or both, to pay the ward or protected person for some or all of the fees and expenses as the court deems just under the circumstances.
C. The remedies permitted allowed pursuant to this section are in addition to any other civil remedy or any other provision of law. The remedies permitted allowed pursuant to this section may be invoked to mitigate the financial burden on a ward, protected person, decedent's estate or trust incurred as a result of unjustified court proceedings or unreasonable or excessive demands made on a fiduciary, fiduciary's attorney, court-appointed attorney, guardian ad litem or representative.
D. For the purposes of this section:
1. "Court-appointed attorney" means an attorney appointed pursuant to section 14-5303, subsection C, section 14-5310, subsection C, section 14-5401.01, subsection C or section 14-5407, subsection B.
2. "Fiduciary" means an agent under a durable power of attorney, an agent under a health care power of attorney, a guardian, a conservator, a personal representative, a trustee or a guardian ad litem.
3. "Person who engaged in the conduct" includes a fiduciary, an attorney or a guardian ad litem.
4. "Professional" means an accountant, an attorney, a fiduciary, a physician, a psychologist, a registered nurse, a guardian ad litem or an expert witness.
5. "Professional fees or expenses" includes the fiduciary's fees and expenses and the fiduciary's attorney fees and expenses, as well as the fees and expenses of any other professionals hired by the fiduciary or the fiduciary's attorney.
Sec. 2. Transfer and renumber
Section 14-1408, Arizona Revised Statutes, is transferred and renumbered for placement in title 14, chapter 11, article 3, Arizona Revised Statutes, as section 14-10302.
Sec. 3. Title 14, chapter 1, article 4, Arizona Revised Statutes, is amended by adding a new section 14-1408, to read:
14-1408. Appointment of guardian ad litem
At any point in a proceeding brought under this title, the court may appoint a guardian ad litem to represent the interest of a minor, an incapacitated, unborn or unascertained person or a person whose identity or address is unknown, if the court determines that representation of the interest otherwise would be inadequate. If not precluded by conflict of interests, the court may appoint a guardian ad litem to represent several persons or interests. In its order appointing the guardian ad litem, the court shall state the basis for the appointment.
Sec. 4. Section 14-5314, Arizona Revised Statutes, is amended to read:
14-5314. Compensation of appointees; definitions
A. If not otherwise compensated for services rendered, an investigator, accountant, lawyer, physician, registered nurse, psychologist, or guardian or guardian ad litem who is appointed pursuant to this article, including an independent lawyer representing the alleged incapacitated person pursuant to section 14-5303, subsection C, is entitled to reasonable compensation from the estate of the ward if the petition is granted, or from the petitioner if the petition is denied.
B. If the petitioner withdraws the petition or if the petition is dismissed because of the petitioner's failure to prosecute, the court may order that the compensation of the investigator, accountant, lawyer, physician, registered nurse, psychologist, or guardian or guardian ad litem appointed pursuant to this article, including an independent lawyer representing the alleged incapacitated person pursuant to section 14-5303, subsection C, be paid either from the ward's estate or by the petitioner, depending on the facts and circumstances. In making this determination, the court may consider any evidence it deems appropriate.
C. A lawyer who is employed by the guardian to represent the guardian in the guardian's appointment or duties as guardian is entitled to reasonable compensation from the ward's estate if the petition is granted. If the petitioner withdraws the petition or if the court dismisses the petition because of the petitioner's failure to prosecute, the court may order that the compensation of the proposed guardian's lawyer be paid either from the ward's estate or by the petitioner, depending on the facts and circumstances. In making these determinations, the court may consider any evidence it deems appropriate.
D. A lawyer who is employed by the petitioner to represent the petitioner in seeking the appointment of a guardian is entitled to reasonable compensation from the ward's estate if the petition is granted.
E. If the court compensates the provider of a service, the court may charge the estate for the reasonable cost of the service and shall deposit these monies in the probate fund pursuant to section 14-5433.
F. If compensation by the ward or the petitioner is not feasible the court shall determine and pay reasonable compensation for services rendered by an investigator, accountant, lawyer, physician, registered nurse, psychologist, or guardian or guardian ad litem appointed in a guardianship proceeding.
G. If a county pays for any of these services from general fund appropriations, the county may charge the estate for reasonable compensation. The county treasurer shall deposit monies collected pursuant to this subsection in the same fund from which the expenditure was made.
H. For the purposes of this section:
1. "Guardian" includes both a guardian and a temporary guardian.
2. "Petition" means a petition filed pursuant to section 14-5303, subsection A or section 14-5310, subsection A.
3. "Ward" includes an alleged incapacitated person.
Sec. 5. Section 14-5414, Arizona Revised Statutes, is amended to read:
14-5414. Compensation and expenses; definitions
A. If not otherwise compensated for services rendered, any investigator, accountant, lawyer, physician, registered nurse, psychologist, guardian ad litem or conservator who is appointed in a protective proceeding, including a lawyer of the person alleged to be in need of protection pursuant to section 14-5407, subsection B, is entitled to reasonable compensation from the estate of the protected person if the petition is granted or from the petitioner if the petition is denied.
B. If the petitioner withdraws the petition or if the court dismisses the petition because of the petitioner's failure to prosecute, the court may order that the compensation of the investigator, accountant, lawyer, physician, registered nurse, psychologist, guardian ad litem or conservator who is appointed pursuant to this article, including a lawyer of the person alleged to be in need of protection pursuant to section 14-5407, subsection B, be paid either from the protected person's estate or by the petitioner, depending on the facts and circumstances. In making these determinations, the court may consider any evidence it deems appropriate.
C. A lawyer who is employed by the conservator to represent the conservator in the conservator's appointment or duties as conservator is entitled to reasonable compensation from the estate if the petition is granted. If the petitioner withdraws the petition or if the petition is dismissed because of the petitioner's failure to prosecute, the court may order that the compensation of the proposed conservator's lawyer be paid either from the protected person's estate or by the petitioner, depending on the facts and circumstances. In determining which party shall pay, the court may consider any evidence it deems appropriate.
D. A lawyer who is employed by the petitioner to represent the petitioner in seeking the appointment of a conservator is entitled to reasonable compensation from the protected person's estate if the petition is granted.
E. If the court pays for any of these services it may charge the estate for reasonable compensation. The clerk shall deposit monies it collects in the probate fund pursuant to section 14-5433.
F. If a county pays for any of these services from general fund appropriations, the county may charge the estate for reasonable compensation. The county treasurer shall deposit monies collected pursuant to this subsection in the same fund from which the expenditure was made.
G. Compensation payable to the department of veterans' services, when acting as a conservator of the estate of a veteran or a veteran's surviving spouse or minor child or the incapacitated spouse of a protected veteran, shall not be more than five per cent percent of the amount of monies received during the period covered by the conservatorship. A copy of the petition and notice of hearing shall be given to the proper officer of the veterans administration United States department of veterans affairs in the manner provided in the case of any hearing on a guardian's account or any other pleading. A commission or compensation is not allowed on the monies or other assets received from a prior conservator or on the amount received from liquidation of loans or other investments.
H. For the purposes of this section:
1. "Conservator" includes a conservator, temporary conservator or special conservator.
2. "Petition" means a petition filed pursuant to section 14-5401.01, subsection A or section 14-5404, subsection A.
3. "Protected person" includes a person who is alleged to be in need of protection.
Sec. 6. Section 14-5419, Arizona Revised Statutes, is amended to read:
14-5419. Accounts; definition
A. Except as provided pursuant to subsection F of this section, every conservator must account to the court for the administration of the estate annually pursuant to rules adopted by the supreme court and on termination of the protected person's minority or disability, except that for good cause shown on the application of an interested person, the court may relieve the conservator of filing annual or other accounts by an order entered in the minutes.
B. The court may take any appropriate action on filing of annual or other accounts. In connection with any account, the court may require a conservator to submit to a physical check of the estate in the conservator's control, to be made in any manner the court may specify.
C. An adjudication allowing an intermediate or final account can be made only on petition, notice and a hearing. Notice must be given to:
1. The protected person.
2. A guardian of the protected person if one has been appointed, unless the same person is serving as both guardian and conservator.
3. If no guardian has been appointed or the same person is serving as both guardian and conservator, a spouse or, if the spouse is the conservator, there is no spouse or the spouse is incapacitated, a parent or an adult child who is not serving as a conservator.
4. A representative guardian ad litem appointed for the protected person, if the court determines in accordance with section 14-1408 that representation of the interest of the protected person would otherwise be inadequate.
D. An order, made on notice and a hearing, allowing an intermediate account of a conservator, adjudicates as to the conservator's liabilities concerning the matters considered in connection therewith. An order, made on notice and a hearing, allowing a final account adjudicates as to all previously unsettled liabilities of the conservator to the protected person or the protected person's successors relating to the conservatorship.
E. In any case in which the estate consists, in whole or in part, of benefits paid by the United States department of veterans affairs to the conservator or the conservator's predecessor for the benefit of the protected person, the United States department of veterans affairs office that has jurisdiction over the area is entitled to a copy of any account filed under this article. Each year in which an account is not filed with the court, the conservator, if requested, shall submit an account to the appropriate United States department of veterans affairs office. If an account is not submitted as requested, or if it is found unsatisfactory by the United States department of veterans affairs, the court on receipt of notice of the deficiency shall require the conservator to immediately file an account with the court promptly.
F. Unless prohibited by order of the court, the conservator may file with the court, in lieu of a final account, a verified statement stating that:
1. The protected person has died. The conservator shall attach a certified copy of the protected person's death certificate to the statement.
2. The protected person's successors have all waived in writing their right to have the conservator submit to the court a final account of the conservator's administration of the protected person's estate. The conservator shall attach the originals of the written waivers to the statement.
3. The conservator has delivered a copy of a closing statement to the protected person's successors. The conservator shall attach a copy of the closing statement to the statement.
G. The closing statement that is to be delivered to the protected person's successors shall be a verified statement stating the following:
1. The protected person has died and the date of the person's death.
2. The persons receiving the closing statement have a right to have the conservator submit to the court a final account of the conservator's administration of the protected person's estate.
3. If the person wishes to have the final accounting reviewed by the court, the person should not sign a waiver that waives this right.
4. If all persons receiving the closing statement choose to waive the right to have the conservator submit to the court a final account, the final account will not be reviewed by the court.
5. A list of the property owned by the protected person, as of the date of the protected person's death, is attached to the closing statement and that the list states the fair market value of the property as of the date of the protected person's death.
6. The conservator, by the closing statement, shall inform the protected person's successors that if they waive court review of the conservator's final account, the conservatorship will be terminated, the conservator will be discharged from all liabilities relating to the conservatorship, the bond or other security posted by the conservator will be exonerated and any restrictions previously imposed on the assets of the conservatorship will be lifted.
H. The conservator shall file an affidavit with the court that states that the closing statement was sent or delivered to the protected person's successors on a date before the date that the protected person's successors signed the written waiver.
I. Unless proceedings are pending against the conservator, on the filing of the statement described in subsection F of this section and the affidavit described in subsection H of this section, the court shall enter an order terminating the conservatorship, discharging the conservator from all liabilities relating to the conservatorship, exonerating and releasing any bond or other security posted by the conservator and releasing any restrictions previously imposed on the assets of the conservatorship.
J. For the purposes of this section, "protected person's successors" means:
1. The personal representative of the protected person's estate if the personal representative and the conservator are not the same person.
2. If the conservator and the personal representative of the protected person's estate are the same person and if the protected person died intestate, the protected person's heirs.
3. If the conservator and the personal representative of the protected person's estate are the same person and if the protected person died testate, the devisees under the protected person's will that has been admitted to probate.
Sec. 7. Section 14-10302, Arizona Revised Statutes, as transferred and renumbered, is amended to read:
14-10302. Appointment of representative
A. If the court determines that an a beneficiary's interest is not represented under this article chapter or that the otherwise available representation might be inadequate, the court may appoint a representative to receive notice, give consent and otherwise represent, bind and act on behalf of a minor, incapacitated person, unborn child or person whose identity or location is unknown. The court may appoint a representative for several persons or interests.
B. A representative appointed under this section may act on behalf of the person represented with respect to any matter arising under this title, whether or not a judicial proceeding concerning the trust or estate is pending.
C. In making decisions, a representative may consider general benefit accruing to the living members of the family of the person represented.
D. The court's authority to appoint a representative under this section is in addition to its authority to appoint a guardian ad litem under section 14-1408.
Sec. 8. Section 14-12102, Arizona Revised Statutes, is amended to read:
14-12102. Definitions
In this chapter, unless the context otherwise requires:
1. "Adult" means an individual who is at least eighteen years of age.
2. "Conservator" means a person appointed by the court to manage the estate of an adult protected person, including a person appointed under chapter 5 of this title.
3. "Court of this state" or "court in this state" means the superior court.
4. "Guardian" means a person who has qualified as a guardian of an incapacitated person pursuant to testamentary or court appointment and includes a person who is appointed under chapter 5, article 3 of this title. Guardian does not include a guardian ad litem who is appointed pursuant to section 14-1408 or a representative who is appointed pursuant to section 14-1408 14-10302.
5. "Guardianship order" means an order appointing a guardian.
6. "Guardianship proceeding" means a judicial proceeding in which an order for the appointment of a guardian is sought or has been issued.
7. "Incapacitated person" means an adult for whom a guardian has been appointed.
8. "Person", except in the term incapacitated person or protected person, means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government or governmental subdivision, agency or instrumentality or any other legal or commercial entity.
9. "Protected person" means an adult for whom a protective order has been issued.
10. "Protective order" means an order appointing a conservator or other order related to management of an adult's property.
11. "Protective proceeding" means a judicial proceeding in which a protective order is sought or has been issued.
12. "Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
13. "Respondent" means an adult for whom a protective order or the appointment of a guardian is sought.
14. "State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, a federally recognized Indian tribe or any territory or insular possession subject to the jurisdiction of the United States.
APPROVED BY THE GOVERNOR APRIL 16, 2021.
FILED IN THE OFFICE OF THE SECRETARY OF STATE APRIL 16, 2021.
