In a few short weeks, health care agents will need something extra to protect incapacitated loved ones from upsetting visitors. A court order. Starting September 29, when new laws in Arizona take effect, health-care agents (“HCPOAs”) will be subject to a new visitation law, A.R.S. § 36-3211.
New Visitation Law: ‘Encourage and Allow’ Contact
The new law requires an HCPOA to “encourage and allow contact” between the person who appointed them (“the principal”) and those with whom they have a “significant relationship.”
And further: An agent cannot “limit, restrict or prohibit reasonable contact between the principal and any other person without prior court approval.”
That’s right. Agents cannot limit visitation for any reason without going to court. Before this new law, agents didn’t have legal authority to restrict visitors for any reason at all. That power requires guardianship. But they could justify limits for a medical purpose.
A similar contact requirement exists for guardians in Arizona.
Inspiration from Celebrity Cases
The inspiration for laws like these comes from tragic cases like Peter Falk and Casey Kasem. As the actor and DJ declined, their wives excluded children from prior relationships. Legal disputes ensued.
Although the goal of keeping relationships intact is laudable, the result of the new law may be escalated disputes in court. And those can get very expensive.
An Alternative: Change Powers of Attorney
There is an alternative. If the principal grants the authority to limit contact in a power of attorney, the agent doesn’t need a court order.
Attorneys like Fleming & Curti are having conversations with clients now about whether they want their agent to have this power. So far, clients have responded universally yes.
If such provisions become common, this visitation law will have the opposite of its intended effect: If agents have the authority to limit contact, those wanting to challenge will have limited recourse.
Asking for Court Intervention
If the agent doesn’t have authority in the document, she has to file a lawsuit, or petition. The petition must: 1) describe the relationship, 2) describe the restrictions sought, and 3) explain why the limitations are in the principal’s best interest.
If the agent seeks to cut off all contact because it would be “detrimental to the principal’s physical or emotional health or well-being,” a doctor must submit a written statement in support.
In addition, the agent has to “give notice,” or inform both the principal and the person whose contact will be affected about the lawsuit, and they can voice their opinions. This can easily set the stage for an expensive battle.
Others Can Go to Court, Too
Other parties can seek the court’s assistance, too. The principal or a person whose contact has been limited may petition to compel contact. They must describe the relationship and the contact being requested. The petitioner has to prove: 1) the relationship is significant, and 2) contact is in the principal’s best interest.
If the situation appears urgent, a judge can issue a temporary order, even without notice. The order can limit contact if there are “reasonable grounds to believe that contact . . . would result in immediate and irreparable injury, loss or damage to the principal.” Such an order would be good for only 14 days.
Factors a Judge Will Consider
The visitation law instructs judges how to decide what, if any, contact is in the principals best interest. Factors to consider, the law says, are those that are relevant to the principal’s health, safety and welfare, including:
- Past and present relationship,
- The principal’s wishes, if there’s sufficient mental capacity to make an intelligent choice,
- The mental and physical health of both parties, and
- Any history of domestic violence, child abuse, elder abuse, drug or alcohol abuse, or a record of false reporting.
More Voices Will Weigh In
The judge will need information to make the determination, so the statute provides that more professionals must or can weigh in.
The principal gets his or her own attorney or guardian ad litem, or both. The judge can appoint an investigator or physician, or both, to submit a written reports. All of these people can charge fees for their work. The judge can decide that a party who “acted in bad faith or unreasonably” pays.
The procedure is very much like a guardianship proceeding, which having a power of attorney seeks to avoid.
After the initial Order, those involved – the principal, the agent, and the person with the significant relationship — can ask to modify the arrangement. A request requires “a material change” in the principal’s health, safety or welfare.
Safeguard Your Own Wishes
Judges are instructed to “safeguard the wishes of the principal if those wishes can be reasonably ascertained.”
In light of this visitation law, you may want to take action to safeguard your wishes. Revise your power of attorney to explicitly include — or exclude — the power to decide who you associate with if you ever are unable to decide yourself.
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