Lawmakers set to expand court protections for vulnerable adults

There is some unfinished business Arizona lawmakers are aiming to address when they return from a month-long break to the Capitol, and one bill they will consider would give vulnerable adults more autonomy in decision-making.

House members passed Senate Bill 1291 on May 15 unanimously before the Legislature took an extended break, and the bill must return to the Senate for approval of amendments before it can go to Gov. Katie Hobbs.

A small bipartisan group of legislators gathered Thursday morning at ASU’s Walter Cronkite School of Journalism and Mass Communication for a town hall to explain the legislative intent behind the bill. Sens. Justine Wadsack, R-Tucson; John Kavanagh, R-Fountain Hills; and Reps. Alexander Kolodin, R-Scottsdale; Laura Terech, D-Phoenix; and Jennifer Longdon, D-Phoenix, attended the event.

The bill would add several protections for people entering a conservatorship or guardianship through probate court. Many disabled and elderly adults are appointed a guardian by a court of law who will control the person’s decisions, including any related to finances and health.

“Most of the time it works perfectly fine. It’s a needed service and the people appointed are decent people and they make reasonable decisions and there are safeguards in the system so if they don’t, then that can be challenged,” said the bill’s sponsor Kavanagh on Thursday. “But there are also great potentials for abuse. Again, a minority of the cases, but it’s our job to protect everyone.”

Kavanagh said the goal of the bill was to ensure people have access to information about the guardianship process while also making sure a guardian doesn’t limit access to a family member, friend or person close to their ward if the court determines the relationship isn’t detrimental to the ward’s health, safety or welfare.

The bill would also guarantee legal or health directives expressed by a person before they are determined to not have capacity to make those decisions anymore.

“I think we’re realizing more and more in 2023 it’s a bit profound that we’re having to do what we have to do to protect people’s constitutional rights. We’re ensuring people’s rights are protected, we’re respecting people’s dignity (while) living independently as much as possible,” Wadsack said during the town hall.

Abusive guardians can be devastating for a vulnerable person and their family, said Sherry Lund, the founder of a probate reform advocacy group called Protecting Liberty. Lund said her son and family went through a “living hell” of probate court issues with her son’s trustees from California that resolved after eight years. Lund’s family was vindicated of wrongdoing, but she said the trustees still have control over her son’s twin sister and hasn’t seen her for 13 years.

“These abuses do happen, and worse, every day,” Lund said.

Other disability policy experts say guardianship is too broadly applied to vulnerable adults where many are capable of handling their life decisions.

Jon Meyers, the executive director of the Arizona Developmental Disabilities Planning Council, said guardianship is necessary in many cases when it is properly applied, but often it isn’t appropriate in a “vast majority” of cases and is usually applied improperly.

Meghan Kramer, an attorney with the Arizona Center for Disability Law, said anecdotally, most of the center’s clients who have a guardian likely don’t need one.

The measure is widely supported by lawmakers, but the bill has one amendment that some Republicans have opposed. Kolodin worked with Democrats after the bill failed on May 9 to add language to the bill that allows people to enter into a supported decision-making agreement with a supporter of their choice.

The supporter provides information to an adult about life decisions to help them understand everything they need to know and communicate with other important people in their lives but can’t make any decision on the adult’s behalf.

Longdon has advocated for supported decision-making for five years and said it’s something that everyone does.

“All of these major life decisions, you tend to talk over with someone whose opinion you value,” Longdon said. “Yet overall, we don’t tend to question your capacity to make a decision.”

The supportive decision-making amendment was added on May 15 with overwhelming support from the House, but Rep. Steve Montenegro, R-Goodyear, tried to stop it from being added to the bill.

Montenegro is the chair of the House Health and Human Services committee, and he held similar language to the bill when it was proposed in committee because he said vulnerable adults could potentially be misled by their supporter, citing a 2013 study from Penn State Law Review.

Researchers concluded there is “reason to be concerned” that supported decision-making may allow unaccountable third parties to improperly influence the decisions of persons with disabilities as a result of not enough evidence to see how supported decision-making works in practice. Although they did note “it has the potential to be an empowering alternative to the much-maligned process of guardianship.”

“This subject hasn’t been vetted quite enough in order to make a decision that can potentially be a serious life decision for these individuals,” Montenegro said during debate over the amendment on May 15.

Former Republican Sen. Nancy Barto also said she had concerns over supportive decision-making during Thursday’s town hall. She said mental capacity is a fluid concept and someone may appear capacitated, granted autonomy over decision making, but still be very vulnerable in the future.

“This needs addressing and seems like a slippery slope in terms of protections for those with serious mental illness,” Barto said.

None of those concerns were enough to sway any House members from passing the bill, and Kavanagh is supportive of the amendment. Kramer said existing law already has unintended consequences for many people in guardianships and she hopes the Senate follows the House’s example.

Hobbs signed a bill in May that will establish a probate advisory panel, which is tasked with finding recommendations to improve guardianship laws. Kavanagh said that panel will be helpful if the state goes forward with supportive decision-making.