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Change May Be Coming to Guardian/Conservator Law

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In the Arizona Legislature, the landscape can change quickly. About a month ago, we noted that Arizona’s current legislative season was a fairly quiet one for state planning and elder law purposes. Not so much anymore.

Though the First Regular Session of the 56th Arizona Legislature was scheduled to wrap up April 22, lawmakers are still at it. They’ve recessed, for now, but are scheduled to return June 12, and some important issues for guardianships and conservatorships will be considered by the Senate and quite probably Governor Katie Hobbs.

Change 1: Probate Advisory Panel

But first, an update on a bill we mentioned in April that has already been decided. SB1038, which provides for a “Probate Advisory Panel,” passed both houses, and Gov. Hobbs signed it May 8, 2023. It creates a team of individuals who are to hold public hearings at least quarterly to explore how to “improve the adult guardianship and conservatorship laws through statutory changes.” The Panel is to comprise five professionals from the G/C arena, four “public” members who serve as guardians or conservators for family members, and two “advocates for family members” involved in the system. (If you are counting, those who know the system from the inside out are outnumbered 6-5.) Because no funding has been provided, it’s unclear whether it’s possible for it to move forward to make any changes in any meaningful way.

Change 2: Supported Decision Making

HB 2174, which would add a “supported decision making” alternative to Guardianship or Conservatorship (or agent under power of attorney), is back. The current iteration (the idea has been proposed at least four times over the past few years), barely made a blip in the 56th Arizona legislative session. This was at least partly because the lead sponsor is a Democrat. But as it turns out, Republicans need her vote for the changes they want in Guardianship/Conservatorship statutes. Just after their SB1291 lost a key vote, Republicans regrouped and tacked HB2174 onto their SB1291, to, it seems, secure what looks like bipartisan support for the combined bill.

The former HB2174 (now included in the amended SB1291) creates a new concept under Arizona law. It provides for a “supportive decision-making agreement” under which an adult who has “a physical or mental impairment that substantially limits one or more major life activities” could authorize another adult (the “supporter”) to provide assistance in a number of ways.

What Support Means

Included in the idea of support are “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”; “assist[ing] the adult in accessing, collecting and obtaining from any person information that is relevant to a given life decision, including medical, psychological, financial, education or treatment records” and assisting the adult in understanding that information; and   “assist[ing] the adult in communicating the adult’s decisions to appropriate persons.”

The law obviously is intended to empower adults with impairments to make their own decisions, which is unquestionably a worthy goal. But some believe legislation is not necessary. After all, if a person can make decisions, they can appoint an agent under power of attorney to help them – or just ask loved ones or professionals for assistance. Some even believe formalizing “supporter” authority could be dangerous and serve as an invitation for exploitation. Questions about capacity and undue influence could lead to litigation.

Change 3: Guardianship/Conservatorship

SB1291 made it through the Senate and the House, where lawmakers tacked on supported decision making. It now has returned to the Senate for further consideration before heading to the Governor.

Changes to probate and guardianship/conservatorship practice include:

(1) Requiring most notices of hearing to be sent by registered or certified mail rather than regular mail.

(2) Requiring specific, mandatory duties for court-appointed counsel in guardianship and conservatorship matters.

(3) Elevating the significance and priority of agents under powers of attorney as guardian or conservator appointees.

(4) Mandating inclusion of the right to a jury trial in notices of hearing in guardianship and conservatorship matters.

(5) Switching the presumption for contact with a person under guardianship to the guardian, requiring they prove by clear and convincing evidence that contact would be detrimental.

(6) Clarifying that the standard of proof in conservatorship matters is clear and convincing evidence.

Costs Are Likely to Increase

As we noted in April, jury trials would be automatic in guardianships, unless the subject of the proceedings waives the right. Currently, juries are permissible but rarely used. The cost and time will increase, perhaps to the point that few will be able to afford them. (Which may be the goal of the legislation.)

Arizona already requires appointment of an attorney for the alleged incapacitated person in guardianship and conservatorship proceedings. The new law would require that court-appointed attorneys to visit the client at least a week before the hearing. In addition, there’s a list of other explicit duties not previously mandated. Here again costs, usually borne by the subject of the guardianship, will probably increase.

If the changes to SB1291 clear the Senate, the bill will go to the Governor’s desk. There has been some organized opposition. But the new sheen of bipartisanship could mean  Gov. Hobbs will be more likely to sign it. We’ll still be watching.

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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

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Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.