Silverman v. Ariz. Dept. of Econ. Sec., CV-23-0181-PR, 6/3/24.

 

     Investigative journalists can engage in “bona fide research” under A.R.S. § 46-460(D)(8), an exception to the general rule that certain records pertaining to abuse, exploitation, or neglect of vulnerable adults must be shielded from public inspection.  Adult Protective Services (APS) operates a program within the Arizona Department of Economic Security (ADES).  Although Arizona law provides a general right to inspect public records, APS records are presumptively restricted from release.  A statutory exception to that presumption provides that ADES employees may release records to “any person who is engaged in bona fide research,” if other criteria are met.  Because the exception applies to “any person,” without limitation, investigative journalists may qualify for the exception.  

 Disclaimer

 

 

Voting In The Upcoming General Election in Arizona

 

Dates You Need to Know

October 7 – Voter Registration Deadline

October 9 – Early Voting Begins

October 25 – Last Day to Request a Ballot by Mail

October 29 – Mail Back Your Ballot By

November 1 – Last Day to Vote Early In-Person

November 5 – Election Day

When is the Deadline to Register to Vote in the General Election?

          The deadline to register to vote in the upcoming general election is October 7, 2024.  To register to vote, one must be a United States citizen, an Arizona resident in the county listed on your registration twenty-nine days prior to the election, eighteen years of age or older, and able to write your name or make your mark unless prevented by a disability.  You are unable to register if you have been adjudicated an incapacitated person or have been convicted of a treason or felony (unless you have had your civil rights restored).  For a first-time felony conviction, civil rights are automatically restored upon completion of a person’s sentence and payment of any fines and restitution.    

Registering to Vote Online

          Have your valid Arizona driver’s license or identification card available.  Go to Service Arizona and complete the instructions.  Click on “Voter Registration” and follow the instructions. 

Registering to Vote With a Paper Form

          Download a paper form at AZ Clean Elections or pick one up from your County Recorder’s office or public assistance agencies.  Fill out the form according to the instructions.  Mail your completed registration form to the county recorder or drop it off in person.  You’ll receive a registration card in the mail from the County Recorder.  Check the card to be certain all the information is correct. 

Active Early Voting List

          Sign up for the Active Early Voting List and you’ll automatically receive a ballot by mail for every election in which you are eligible to vote.

How to Check to See if You are Registered to Vote

          To check if you are registered to vote, visit the following link:

          AZ Clean Elections Verify My Voter Registration

 I Don’t Have a Permanent Home – Can I still Vote?

          Yes, as long as you are qualified and your address is one of the following:  a homeless shelter, a temporary place for living (halfway house, transitional housing, etc.), the county courthouse, or a general delivery address. 

Early Voting

          Voters that are on the Active Early Voting List, reside in a ballot by mail jurisdiction, or have requested a one-time early ballot will receive their ballot in the mail shortly after the start of early voting.  You can also vote in person at designated early voting locations. 

Election Day Voting

          If your county uses polling places, voters must go to their assigned polling place for their address.  If your county uses vote centers, you may go to any vote center within your county.  Polls are open from 6:00 a.m. until 7:00 p.m. and identification is required to vote at the polls. 

When Do I Need to Update My Registration?

          You are required to update your registration to vote anytime you move away from your permanent or temporary address, change your name, or change your party.  If you didn’t update your registration prior to an election, you can still vote a provisional ballot, which can then be used to update your registration as long as you reside in the same county. 

How to Vote by Mail

          There are two ways to vote by mail.  You can either request a one-time ballot for a single election, or you can sign up for the Active Early Voting List for all future elections.  You may cancel at any time.          

          Mail back your ballot at least seven days before Election Day.  You can also return your ballot to the county recorder/elections office, a designated ballot return box, or any voting location in your county.  All ballots must be received by the county by 7:00 p.m. on Election Day. 

How Is My Identification Verified?

          Your signature is used to verify your identity.  You must sign the ballot affidavit envelope to make sure your vote is counted.  Professionally trained election staff verify the envelope signature matches your voter registration record.  Every voter’s identity must be confirmed before their ballot can be counted.   

Disclaimer 

 

 

 

August is National Wills Month - Who Knew?

 

        You can take care of a number of issues with a will.  Particularly for young couples, one of the most important reasons for having a will is to nominate a guardian for their children should they die while their children are minors, as well as provide for adult supervision of any property left to their minor children.  If you have not executed a will in which you have nominated a guardian for your children, the court may step in and appoint someone.

          By having a will, you can not only choose who is to receive your property when you die, but you can also name an alternate beneficiary or beneficiaries if your first choice fails to survive you.  In addition, you can choose a personal representative to carry out your wishes.  If you die without a will in which you’ve named a personal representative, the court will appoint one.

          When a person dies without a will, they are said to have died “intestate” and their property is distributed pursuant to Arizona’s statutes of intestate succession.

Types of Wills Recognized by Arizona Law

          The Arizona Code recognizes holographic wills, attested wills, self-proved wills, and electronic wills.  To be valid, a will must comply with the execution formalities of either a holographic will or an attested will.  A holographic will does not require witnessing, but it must be signed by the testator, and the material provisions (which would include the identity of the testator’s property and the beneficiaries chosen to receive that property) must be in the testator’s handwriting.

          An attested will must be in writing and signed by the testator and at least two witnesses.  The will does not have to be signed by the testator in the presence of the witnesses, and the witnesses do not have to sign in the presence of the testator or each other.  However, the testator must then tell the witnesses that the signature on the document is, indeed, the testator’s or that the document constitutes the testator’s will.

          Most attorneys continue to execute an attested will with greater formality by having the testator sign in the presence of two witnesses, who then sign the will in the testator’s presence at his or her request, and in the presence of each other.  This helps prevent any question about the validity of the will if it must be probated in another state.

          The advantage of a self-proved will is most evident in the event of a will contest.  Formalities of execution are conclusively presumed if a self-proved will is contested in a formal testacy proceeding.  An attested will may be self-proved either at the time of the original execution or later.  Regardless of when an attested will is made self-proved, the process involves an acknowledgment by the testator and affidavit of the witnesses before a notary public.  There are statutory requirements regarding the content of the language that must be included at the end of the will if it is to be self-proved.

          Regardless of the type of will, the testator must be of sound mind to make a will.  To have sufficient mental capacity, the testator must understand the natural objects of his or her bounty, the kind or character of his or her property, and the nature of the testamentary act.

The Use of a Separate Personal Property List to Dispose of Specific Property

          Certain tangible personal property may be disposed of by a separate written list, but there are some limitations and requirements.  The property and the recipients of that property must be described with reasonable certainty, the list must be referred to in a properly executed will, and the list must be either in the handwriting of the testator or signed by the testator.  In addition, property disposed of by the list must not be property specifically devised in the will itself, and is limited to tangible personal property.  For example, the list cannot be used to dispose of money or property such as bank accounts or securities, which are intangible personal property.

          The purpose of this provision is to allow a testator to prepare a separate list of things such as jewelry, collections, pictures, furniture, clothing, and other personal effects he or she would like to leave to family and friends.  The advantage of a list such as this is that it may be made up after the execution of the will and completed or changed at a later date.  Although there is no limit on the value of the tangible personal property that may be disposed of by the list, it should be used to dispose of items of relatively small value, and valuable items should be specifically devised in the will.

 Disclaimer

 

Wood v. Coconino, 1-CA-CV-2022-0710 - Guardianship and Voting

 

    Arizona’s guardianship statutes A.R.S. §§ 14-5101(3), 14-5304, and 14-5304.02, violate the due process rights of a person subject to guardianship proceedings by terminating the right to vote upon establishment of a general guardianship without a determination of the person’s voting capacity and by placing the burden on the ward to justify retaining the right to vote.  The statutes are not narrowly tailored, nor are they the least restrictive means of achieving the State’s interest.  The statutes target all wards, not just those who may lack voting capacity.  Due process requires that, before terminating the right, petitioner must show by clear and convincing evidence that the person lacks the capacity to vote.  The ward does not bear that evidentiary burden.  Wood v. Coconino, 1-CA-CV-2022-0710, 5/30/24.

 Disclaimer

 

 

 

 

Arizona Supreme Court Declines to Add a Ninth Factor When Considering Undue Influence

 

Examining the non-exclusive factors that are treated as significant indicia of the presence or absence of undue influence in the execution of a testamentary document, as found in In re Estate of McCauley, 101 Ariz. 8, 10-11 (1966), the Arizona Supreme Court declined to add a new ninth factor, statements that a grantor made after executing a deed, though such statements may be relevant in some cases alleging undue influence.  A grantor’s post-execution statement is relevant to an undue influence claim if it addresses the grantor’s state of mind or mental condition, or the circumstances present, at the time of the execution of the document.  Rosenberg v. Sanders, CV-22-0170-PR, 12/11/23.   

 Disclaimer

 

Lindquist v. Mathias et al., 1 CA-CV 2022-0213, 3/2/23

 

The Superior Court must first determine an individual is a vulnerable adult before it empowers an interested person to sue for damages on the vulnerable adult’s behalf under A.R.S. § 46-456(G).

The above-referenced section requires the court to make three findings before it grants an interested person’s petition to sue on behalf of a vulnerable adult.  The petitioner must qualify as an “interested person” under A.R.S. § 14-1201(33), the individual to be protected must be a “vulnerable adult,” and neither the vulnerable adult nor “a duly appointed conservator or personal representative” must have filed an action against the proposed defendant under A.R.S. § 46-456(B).  Lindquist v. Mathias et al., 1 CA-CV 2022-0213, 3/2/23.

The full text of the case: 

Lindquist v. Mathias et. al 

Disclaimer 

Probate Advisory Panel

        

      On May 8, 2023, Governor Hobbs signed SB1038, which establishes the Probate Advisory Panel and outlines membership and duties of the panel.  The panel is required to hold quarterly public hearings on how to improve adult guardianship and conservatorship laws through statutory changes, and requires the panel to submit a report of its findings by November 15 of each year. 

      The Chaptered version may be read at the following link:

      Chapter 123 Senate Bill 1038

      Disclaimer

     

 

 

 

Does Arizona Law Allow For Pet Trusts?

    Yes, Arizona allows for the creation of trusts to benefit pets.  A “pet trust” may be created for the benefit of one or more animals that were alive during the settlor’s lifetime.  Animals may be added before the settlor’s death, and the trust may last until the death of the last surviving animal.  While all fifty states now allow for the creation of pet trusts, Arizona law has allowed for pet trusts for quite some time, and the statute can be found at Arizona Revised Statutes § 14-10408.

 

Disclaimer 

An Overview of Probate Law in Arizona

          

        Probate has traditionally been defined as the court procedure by which a will is proved to be valid or invalid.  In current usage, the term probate has been expanded to refer to the legal process wherein the estate of a decedent is administered.  In Arizona, there are several ways to proceed in the handling of an estate.  Basically, an estate may be handled as a single supervised administration or as a series of separate proceedings, which may be either “formal” or “informal.” 

        In the majority of cases, the administration of one’s estate is no longer the difficult process it once was. Arizona law provides for a flexible system for the administration of estates, which means there are several ways to proceed in the handling of an estate.  The procedure used will be dependent upon the nature of the estate and problems anticipated in the handling of the estate, if any.

        As mentioned, an estate may be handled either as a single, supervised administration or as a series of separate proceedings which may be either “formal” or “informal.”  Supervised administration, reserved for more complex estates or unusual estates where supervision by the court is found to be necessary under the circumstances or where the will expressly directs supervised administration, is the exception rather than the rule and is rarely used.

        The basic philosophy of the probate and administration sections of Arizona law is to minimize court involvement.  Therefore, the personal representative has full power to administer the estate, including the collection of assets, payment of claims, and distribution of the net estate to the successors of the decedent, without resorting to court order except where interested persons or the personal representative petitions the court.  Even actions requiring court involvement, for example probating the will to give it official status, appointing the personal representative, and closing the estate may be accomplished informally by the approval of a court officer called the Registrar without formal hearing and without advance notice.  Arizona law provides for formal proceedings where an informal proceeding is not available.

        An informal proceeding does not have the same binding effect as an order in a formal proceeding, but it does have specified legal consequences which can be terminated only by court action upon the petition of an interested party in a formal proceeding.  An informal probate or appointment can be confirmed later in a formal proceeding brought by an interested party.  For example, a will may be informally probated and a personal representative appointed on application of the spouse who is named as personal representative.  A dissatisfied heir might contest the probate by petitioning in a formal testacy proceeding, or the spouse might anticipate such a controversy and file a petition in a formal testacy proceeding as soon as informal probate has been completed.  Either way, the informal probate would establish the will temporarily, and the formal testacy proceeding would adjudicate finally whether the informal probate should be confirmed or set aside.

        An informal probate or appointment generally does not require notice in advance and is initiated by an application to the Registrar.  The Registrar acts on the basis of specified findings, and action by the Registrar has binding legal consequences unless and until set aside in a formal proceeding.

        Arizona law also provides for summary administration of some estates where appropriate.  If the value of the entire estate does not exceed the allowance in lieu of homestead, exempt property, family allowance, costs and expense of administration, reasonable funeral expenses and reasonable medical expenses from the last illness, the personal representative may distribute the estate without giving notice to creditors.

        The most urgent issue in the administration of an estate is to have a personal representative appointed.  Because an informally appointed personal representative has the same powers as though appointed formally, and because informal appointment can be obtained by application to the Registrar, there is ample reason for every estate to be opened by the informal process if possible.  Prior to appointment, a person named personal representative in a will may carry out written instructions of the decedent relating to the decedent’s body, funeral, and burial arrangements.  The acts of a nominated personal representative which are beneficial to the estate and were conducted prior to his appointment are given the same effect as those occurring thereafter.  A personal representative is entitled to reasonable compensation for his or her services.

The Probate Process in Five Parts

        When I first meet with clients who are serving as personal representative of their loved one’s estate, I give them a road map of the probate process and discuss any potential problems they may anticipate.  While I go into more detail regarding the process when speaking with clients, I generally break the process down into five parts for ease of understanding.  Please be advised that every estate is unique and the following is only a general outline of the informal probate procedure.    

 
        The first part of the process is the drafting and filing of the required documents for the personal representative to receive their “Letters of Personal Representative.” Informal probate in Arizona is a simplified process that allows a qualified personal representative to be appointed without the delay of the hearing process and provides the personal representative the ability to administer the estate with little, if any, court involvement. Formal proceedings are required to appoint a personal representative in certain situations such as when there is a person with a higher order of priority who has not renounced or waived their right by appropriate writing filed with the court; if a priority is shared by two or more persons, as devisees or heirs, and one or more of them has not renounced or concurred in nominating the person whose appointment is applied for; or if appointment is sought by a person who does not have any priority, the court shall determine that those having priority do not object to the appointment, and that administration is necessary.

        The second part of the process involves providing notice to creditors of the estate by providing actual notice to known creditors and by publishing notice in a newspaper of general circulation for any unknown creditors of the estate.

        The third part of the process involves preparing an inventory of property owned by the decedent at the time of his or her death, and the hiring of an appraiser to assist in determining the value of the assets, if necessary. Creditors will begin to present their claims, the home of the deceased may be sold, the personal representative will begin collecting, securing, and documenting the deceased’s assets and will provide an inventory of those assets to the deceased’s beneficiaries, and partial distributions may be made to the beneficiaries of the estate if prudent. The personal representative will also perform or refuse performance of the decedent’s contracts that continue as obligations of the estate, as he or she may determine under the circumstances. Dependent upon the nature of the decedent’s estate, the personal representative may invest estate funds; purchase, dispose of, or sell assets; make ordinary or extraordinary repairs or alterations in buildings or other structures; vote stocks or other securities in person or by general or limited proxy; purchase insurance; effect a fair and reasonable compromise with any debtor or obligor, or extend, renew, or in any manner modify the terms of any obligation owing to the estate; pay debts and expenses of administration; continue a business; and employ persons, including attorneys, auditors, and investment advisors to advise or assist the personal representative in the performance of his or her administrative duties.

        At this point, the personal representative will have a good understanding of the value of the estate. The fourth part of the probate process generally involves the payment of valid claims, handling of any tax issues, and distribution of assets to the decedent’s beneficiaries. The distribution checks are mailed to distributees of the estate by certified mail, along with a “Receipt of Final Distribution” for signature. Unless a personal representative is certain the decedent’s estate will be solvent, it is unwise to pay any creditors or distribute any assets until the four month time for presentation of claims has run.

        The final part of the administration of one’s estate involves the closing. The personal representative may close an estate informally by filing a verified statement with the court no earlier than four months after the date of original appointment, unless prohibited by court order, and except for supervised administration proceedings. The personal representative must prepare a final accounting and this accounting must be sent to all distributees affected by this accounting. A “Waiver of Formal Accounting and Release and Consent to Discharge Personal Representative” is sent to all distributees of the estate, along with the accounting. This document states the distributee is entitled to a formal accounting but, instead, accepts this informal accounting which has been prepared by the personal representative or his or her attorney. The “Closing Statement” is signed by the personal representative and is then filed with the court.

Disclaimer  

Obtaining a Will That Has Been Stored in a Safe Deposit Box

        How does a named personal representative (that is, one who has been nominated as personal representative in the deceased’s Will) obtain access to the decedent’s Will when the Will is locked in a safe deposit box at a bank and the only person allowed access to the safe deposit box is the decedent?  Arizona Revised Statutes 6-1008, the text of which I’ve provided below, provides a remedy for this situation.  Essentially, when a person dies, two employees of the bank may open the safe deposit box for a person who claims to be interested in the contents of the safe deposit box.  For example, a named personal representative in a Will located in the safe deposit box would qualify as an “interested person” under the statute.  Employees of the bank may also remove any life insurance policies and deliver them to the beneficiaries named in the policies.

6-1008. Procedure on death of lessee

        In the event only one lessee is named in the lease of a repository and the lessee dies, or on the death of last surviving lessee under a tenancy in two or more names, the repository may be opened by two employees of the lessor in the presence of any person who presents himself and claims to be interested in the contents. The employees may remove any document which appears to be of a testamentary nature and deliver it to any person named in the document as executor or to a clerk of the superior court. The employees may also remove any policies insuring the life of the deceased lessee and deliver them to the beneficiaries named in the policies. All other contents of the repository shall be retained by the lessor and shall be delivered only to the person legally entitled to them.

 

Disclaimer 

The Importance of Complying With Statutory Requirements When Providing Notice to Creditors

      

        Pursuant to A.R.S. § 14-3801, the personal representative of an estate must publish a notice to creditors once a week for three successive weeks in a newspaper of general circulation in the county announcing the appointment, the personal representative’s address, and notifying creditors of the estate to present their claims within four months after the date of the first publication of the notice or be forever barred.  In addition, a personal representative shall give written notice to all known creditors of the personal representative’s appointment.  The notice shall also notify all known creditors to present their claims within four months or be forever barred. 

        In BMO Harris Bank NA v. Espiau 1 CA-CV 20-0460, the Arizona Court of Appeals, Division One, held the statute requiring notice for claims against a decedent’s estate must be strictly complied with.  If a notice does not include all required information, including the deadline for presenting claims, the time limit does not begin to run.  This is true even if the recipient of an incomplete notice is a sophisticated and experienced bank.  

 

Disclaimer 

Rosenberg v. Sanders

 

        In Rosenberg v. Sanders, the Arizona Court of Appeals, Division One, held a grantor’s alleged statements after executing a beneficiary deed may provide relevant and admissible evidence of undue influence.  The trial court did not consider the statements because it applied the eight non-exclusive factors set forth in In re McCauley’s Estate.  The Court of Appeals held the statements should have been considered on summary judgment and, when so considered, along with evidence of the grantor’s earlier state of mind, the record had just enough evidence to create a factual dispute and defeat summary judgment.

The full opinion may be read here:

Rosenberg v. Sanders 

 

Disclaimer

 

 

 

Bates v. Bates No. 1 CA-CV 19-0845

  

Bates v. Bates

The appeal in this case concerns an irrevocable trust that granted a trust protector sole authority to amend the terms of the trust, and the question is whether an undue influence claim can be pled under Arizona Revised Statutes §14-10406 against a beneficiary who allegedly exerted undue influence over the trust’s elderly settlor to induce the trust protector to amend the trust. 

Petitioners, who are the settlor’s children and former wife, sued respondent, the settlor’s wife at the time of his death, in probate court, alleging she exerted undue influence over the settlor to cause the trust protector to amend the trust in her favor.  Respondent moved to dismiss the undue influence claim under Rule 12(b)(6) arguing petitioners only alleged she unduly influenced the settlor, rather than the trust protector, and the settlor had no power to amend the trust.  The court dismissed the claim and removed petitioners as beneficiaries under the trust’s in terrorem clause.  The appellate court reversed in part, vacated in part, and remanded for further proceedings.

The trust protector amended the trust twice within six months of its creation.  At issue in this case is the second amendment which eliminated the settlor’s former wife as a beneficiary, made his current wife the sole income beneficiary of the trust at the settlor’s death, and authorized the trustee to distribute the trust’s assets to the settlor’s current wife as “advisable for any purpose.”  The second amendment also reduced the settlor’s three daughters to remainder beneficiaries upon the current wife’s death, and added the current wife’s sons from a prior marriage as remainder beneficiaries. 

The appellate court ruled beneficiaries of a trust may challenge a trust protector’s amendment of the trust by alleging undue influence over the grantor to induce the trust protector to amend the trust.  

Disclaimer 

Arizona's 54th Legislature's Second Regular Session

Arizona’s 54^th Legislature’s Second Regular Session begins today, January 13, 2020; legislators have already filed 284 bills. 

A summary of just a few of the bills that have been filed are as follows.  To see a complete list of bills that have been filed, go to the Arizona State Legislature website at the following link: 

Arizona State Legislature Filed Bills 

HB 2074: DEATH CERTIFICATES; GENDER

 

The person completing a death certificate is required to record the decedent’s sex to reflect the decedent’s gender identity. On being presented with a document memorializing a gender transition, a local registrar or the state registrar are required to amend the sex listed on a registered death certificate to reflect the decedent's gender identity.

 

• ARS Title Affected: 36
• First Sponsor: Rep. Gabaldon (D - Dist 2)

HB 2055: CIVIL TRAFFIC VIOLATIONS; COMMUNITY RESTITUTION  

A person who violates traffic and vehicle regulation statutes may perform court-approved community restitution in lieu of paying a civil penalty, surcharge, assessment or fee. The court is prohibited from assessing the time payment fee (set elsewhere in statute and currently $20) on civil traffic violations.

• ARS Title Affected: 28
• First Sponsor: Rep. Biasiucci (R - Dist 5)

HB 2062: ANIMAL FIGHTING PARAPHERNALIA; OFFENCE

It is a class 1 (highest) misdemeanor for a person to knowingly own, possess, purchase, sell, transfer or manufacture "animal fighting paraphernalia" (defined) for the purpose of engaging in, promoting or facilitating animal fighting or cockfighting.

• ARS Title Affected: 13
• First Sponsor: Rep. Kavanagh (R - Dist 23)

 

HB 2049: MEDICAL CONDITIONS; MEDICAL MARIJUANA

 

The list of debilitating medical conditions that qualifies a person to receive a medical marijuana registry identification card is expanded to include opioid use disorder and autism spectrum disorder. Due to voter protection, this legislation requires the affirmative vote of at least 3/4 of the members of each house of the Legislature for passage.

• ARS Title Affected: 36 
• First Sponsor: Rep. Espinoza (D - Dist 19)

SB 1071: IMMIGRATION; LAW ENFORCEMENT; REPEAL

Repeals the following statutes established by Laws 2010, Chapter 113 (S1070): the prohibition on state and local government agencies or governing bodies restricting the enforcement of federal immigration law; the requirement for law enforcement officials to determine the immigration status of a person at any lawful stop or arrest where reasonable suspicion exists that the person is unlawfully present in the U.S.; provisions allowing law enforcement to arrest without warrant any person the officer has probable cause to believe has committed a public offense that makes the person removable from the U.S.; the defense of entrapment for employers found to be employing unauthorized aliens; the establishment of willful failure to complete or carry an alien registration document, unlawful stopping to hire and pick up passengers for work, and unlawful application for employment or employment by an unauthorized alien as class 1 misdemeanors; the requirement that a vehicle driven in furtherance of the illegal presence of an alien in the U.S. and in violation of a criminal offense be immobilized or impounded; and the establishment of the Gang and Immigration Intelligence Team Enforcement Mission (GIITEM) Fund.

• ARS Titles Affected: 12, 13, 23, 28, 41
• First Sponsor: Sen. Quezada (D - Dist 29)

HB 2035: APPROPRIATION; VETERANS; SERVICES; BENEFITS COUNSELORS

Makes a supplemental appropriation of $1.2 million from the general fund in FY2020-21 to the Department of Veterans' Services to hire additional benefits counselors.

• ARS Titles Affected: 41
• First Sponsor: Rep. Andrade (D - Dist 29)

  Disclaimer

Free Legal Advice - Tax Law

ABC15 and the State Bar of Arizona have partnered to sponsor "Let Joe Know, Ask a Lawyer Phone Bank."  On Wednesday, March 14, 2018, from 5:00 to 7:00 p.m., lawyers will be on call to answer questions about tax law.  For more information, click on the following link:

State Bar of Arizona - Let Joe Know 

Hawaii Could Be the Seventh State to Allow Medical Aid-In-Dying

Expected to pass in the Senate, Hawaii’s House has approved a controversial medical aid-in-dying measure.  (House Bill 2739)  The measure allows a physician to prescribe life-ending medications to terminally ill, but mentally capable, patients with less than six months to live.  The patient must be capable of taking the medication themselves, only physicians may prescribe the medications, and a mental health consultation is required beforehand. 

For more information:  

House Approves Controversial Medical Aid-In-Dying Bill - Sending it to Senate 

The AMBER Alert in Indian Country Act

House Gives Final OK to Bill Extending AMBER Alerts to Indian Country

Until now, tribal law enforcement agencies had to work through state and local police agencies to post an AMBER alert.  This bill is sponsored by Senator McCain of Arizona, and was sparked by the May 2016 abduction of Ashlynne Mike, an eleven year old Navajo girl; an alert was not posted until the day her body was found.  The AMBER Alert in Indian Country Act will give tribes direct access to funds letting them quickly post AMBER alerts by text messaging, radio, and television.

House Gives Final OK to Bill Extending AMBER Alerts to Indian Country 

SB 1439 – Prohibition on Discrimination Against Health Care Entities

Introduced by Arizona Senator Nancy Barto (R) District 15, SB 1439 protects health care entities, which includes physicians and other health care workers, from discrimination if they choose not to participate in medical treatments or procedures that could end a patient’s life.  Proponents of the bill feel health care providers should be free to opt out of these treatments based on their beliefs without adverse consequences.  Opponents of the bill feel a person should be allowed to make end of life decisions when faced with a terminal illness, and that health care directives should be followed by health care entities.  Pursuant to SB 1439, “discriminate” means taking or threatening any adverse action including, but not limited to, termination of employment, transfer or demotion from current position, and adverse administrative action.     

Arizona law already provides health care providers protection from criminal or civil liability for declining to follow an advanced directive or the decisions of a surrogate decision maker (A.R.S. § 36-3205(C)), as well as disallows the revocation, denial, or suspension of the professional license of a health care provider for acting according to their religious beliefs.  (A.R.S. § 41-1493.04.)  SB 1439 would provide further protection for health care entities by ensuring they are not retaliated against in less overt ways for following their conscience when treating patients.

SB 1439 also creates a civil cause of action for health care entities who have been discriminated against.   

You can read the text of SB 1439 at the following link. 

SB 1439 

Arizona's Revised Uniform Fiduciary Access to Digital Assets Act

 
Arizona’s Revised Uniform Fiduciary Access to Digital Assets Act, which became effective on August 8, 2016, can be found in Title 14, Chapter 13 of the Arizona Revised Statutes. Under this new law a fiduciary, as defined in 14-13102 to include a successor personal representative, conservator, agent or trustee, will have the ability to access, manage, and distribute the deceased or incapacitated person’s digital assets. The purpose of the act is to solve the problem of the inability of a fiduciary to access digital assets which include images, photos, videos, and text files, which are stored either locally on a device owned by the user, or on devices that are accessed by way of the internet, such as when a user stores information “in the cloud.” Digital assets also include social media and e-mail accounts.

Pursuant to 14-13104.A., “[a] user may use an online tool to direct the custodian to disclose to a designated recipient or not to disclose some or all of the user's digital assets, including the content of electronic communications. If the online tool allows the user to modify or delete a direction at all times, a direction regarding disclosure using an online tool overrides a contrary direction by the user in a will, trust, power of attorney or other record.” The new law makes the user’s online instructions legally enforceable and overrides any contrary provision that may exist in a user’s other estate planning documents if the online tool allows the user to modify or delete a direction at all times.

A.R.S. 14-13104.B. allows a user to give legally enforceable directions for the disposition of digital assets in a will, trust, power of attorney, or other written record “[i]f a user has not used an online tool to give direction under subsection A of this section or if the custodian has not provided an online tool.” Note this includes the content of electronic communications sent or received by the user. If the user has not provided any direction, either by using an online tool or traditional estate planning documents, the terms of service will determine whether a fiduciary may access a user’s digital assets. Finally, if the terms of service do not address accessibility by a fiduciary, the default rules in the new law apply, and they can be found in A.R.S. 14-13107, 14-13108, 14-13109, 14-13110, 14-13111, 14-13112, 14-13113, and 14-13114.

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Suggestions, Not Demands - Rethinking Living Wills

I wanted to take a moment and bring to the attention of my readers an article that was published in the October, 2004 issue of Arizona Attorney, but still relevant today. The article, titled “Suggestions, Not Demands – Rethinking Living Wills,” was written by Kenney Hegland, who feels one of the inherent problems with living wills is the attempt to make decisions today that may not be implemented for a number of years. That is, deciding now what one will want then.

He states studies show that living wills have little impact on the medical treatment one actually receives at the end of their life, and that doctors usually do what family members want, despite what the patient may have indicated in their living will. However, he doesn’t see this as a problem as he feels living wills are too casual, vague, and speculative to be taken seriously, mainly due to the fact that many living wills are of the “check the box” type.

He brings up a number of excellent points; a worthwhile read.

Suggestions, Not Demands - Rethinking Living Wills

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