Friday, February 17, 2017
As we have discussed often on this Blog, one key issue in guardianships can be the right of access between third persons and the protected ward. Arizona has adopted a new rule expressly permitting individuals with "significant relationships" with a ward to petition the court for access if the appointed guardian is denying contact. A key section of the new law, adding Arizona Rev. Statutes Section 14-1536, effective as of January 1, 2017, provides:
"A person who has a significant relationship to the ward may petition the court for an order compelling the guardian to allow the person to have contact with the ward. The petition shall describe the nature of the relationship between the person and the ward 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 ward and that the requested contact is in the ward's best interest."
In deciding whether to grant access the court is obligated to consider the ward's physical and emotional well-being, and to consider factors such as the wishes of the ward "if the ward has sufficient mental capacity to make an intelligent choice," whether the requesting person has a criminal history or a history of domestic or elder abuse, or has abused drugs or alcohol. The new law also gives the ward the direct right to petition for contact with third persons.
"Significant relationship" is defined in the statute as meaning "the person either is related to the ward by blood or marriage or is a close friend of the ward as established by a history of pattern and practice."
The Arizona guardianship law was also amended to mandate that guardians notify "family members" when an adult ward is hospitalized for more than 3 days or passes away. Section 14-1537 provides notice shall be given to the ward's spouse, parents, adult siblings and adult children, as well as to "any person who has filed a demand for notice."
I have also run into the issue of access where the care for the incapacitated person is being provided by means of family member or third person acting through a "power of attorney." Sadly, in some states, the access issue triggers a full blown guardianship proceeding. Should a similar "significant relationship" test be used to provide a court petition-system outside of guardianships?