Here at Fleming & Curti, PLC, we’ve tried to keep track of what the 2023 Arizona legislature is up to. We monitor bills that affect our clients and the folks we advocate for, and in past years we’ve occasionally even travelled to Phoenix to testify.
This year has been mostly pretty quiet — for us. Education, budgets and election rules have taken up most of the oxygen in Phoenix. Well, that and expelling one of their own members for arranging for testimony that was a little outside the ordinary ambit of legislative attention.
The First Regular Session of the 56th Arizona Legislature is winding down. Their own schedule says they will be done by April 22 — though that date is largely aspirational. The legislature customarily does not meet their own deadlines. But still, much of this year’s work is done. So we want to update you on what they’ve considered — and done — in the world of probate, estate planning, guardianship and conservatorship.
HB2197 — Electronic wills
The first success (in our practice area, anyway) for the 56th Arizona legislature was what might fairly be called a “technical correction” to Arizona’s pre-existing electronic will law. You may recall that Arizona was one of the first in the nation (3rd, if you’re actually counting) to successfully pass an electronic will statute. That turns out not to have been as advanced as it appeared at the time.
Because we were moving in uncharted waters, and at high speed, we adopted a statute that is cumbersome, confusing, complicated and almost completely unused. The 56th Arizona legislature addressed this largely pointless law by — making it possible to witness an electronic will remotely.
Our prediction: the change will increase the usefulness of Arizona’s electronic will law by approximately 1000%. That is, instead of zero uses, in the coming years there will 1000Xzero uses. Now, if they’d made remote witnessing possible for old-fashioned, printed, paper wills, that might have made a difference!
The electronic will bill passed both houses of the 56th Arizona legislature and the Governor signed the new law on April 11. It will become effective in about four months (it depends on when the legislature finally adjourns).
SB1291 — Guardianship/conservatorship modifications
One other bill is likely to become law, but it hasn’t happened yet. This complicated bill significantly changes the guardianship and conservatorship process. Among the changes:
- Jury trials would be automatic in guardianship matters, unless the subject of the proceedings explicitly waives their right to a jury. Currently, juries are permissible but rarely used. The cost and time for guardianships (and conservatorships) will likely both increase, and the costs to the courts will mushroom.
- Arizona already mandates appointment of an attorney (and an investigative officer, and a medical reporter) in virtually all guardianship and conservatorship proceedings. The new law would require that court-appointed attorney to visit his or her client at least a week before the hearing. The attorney would also have some explicit duties not previously spelled out. The cost, usually borne by the subject of the guardianship, will likely increase.
- The new law gives clear priority to health care agents for appointment as guardian, and financial agents for appointment as conservator. On balance, this looks to us like a positive change.
These changes got through the Arizona Senate and almost through the House. If time doesn’t run out, it is likely to land on the Governor’s desk before the end of the 56th Arizona legislature. There has been some organized opposition, and Governor Katie Hobbs has already vetoed bills at a record pace — so it’s hard to predict the next step. But we’re watching.
SB1038 — Probate Advisory panel
You may have read about public controversies surrounding guardianship and conservatorship. You might even have read about those controversies here, at Fleming & Curti, PLC’s Elder Law Issues.
Well, the 56th Arizona legislature has a plan to address those controversies. A commission! Let’s appoint a bunch of people, mostly from the ranks of people who have had bad experiences, and have them meet every few months to consider changes to the law and procedure. They should hold public hearings every three months!
This proposal, about to be approved in the Arizona House of Representatives, would then go back to the Senate and ultimately to the Governor for signature. Do you detect that we are skeptical about this being a positive change out of the 56th Arizona legislature? You’re very perceptive.
SB1699 — Jury trials in probate proceedings
The Arizona Senate approved a bill that mostly included posturing and assertions about the right to a jury trial in probate proceedings — including guardianships and conservatorships. It never got a hearing in the House of Representatives, but some of the core ideas did get implemented in SB1291, described above.
SB 1411 — Automatic guardianship without hearings
This one, we have to admit, was a puzzlement to us. The 56th Arizona legislature spent some energy posturing about the rights of incapacitated citizens. They pushed for recognition of the right to jury trials before guardians could be appointed. And then the State Senate passed a bill that removed all protections for one population.
Under this bill guardianship of developmentally disabled children would have become all but automatic on their 18th birthday — without a real court proceeding, and without appointment of an attorney, investigator or medical reporter. Left unanswered: what about that right to a jury trial, so precious to the legislators?
Fortunately, this ill-advised bill died a quiet death. Though it passed the Senate, the House never held hearings. The final date for a House committee to consider the bill was three weeks ago. This bad idea has not survived the current session.
HB2174 — Supported Decision Making
Finally, a call out to an imperfect but positive idea that the 56th Arizona legislature let die without the slightest consideration. There’s a lot of controversy about the idea of supported decision-making, and we have mixed feelings about the concept. But we think it’s worth exploring, and a thoughtful look at the idea would have been refreshing. Unfortunately, the lead sponsor belongs to the party out of power. Besides, the legislature was pretty busy with elections, “critical race theory” and transgender rights. And now they’ll be busy addressing the four-dozen (so far) vetoes issued by Gov. Katie Hobbs.
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