Section R9-21-206. Competency and Consent

A.       A client shall not be deemed incompetent to manage the cli- ent’s affairs, to contract, to hold professional, occupational or vehicle operator’s licenses, to make wills, to vote or to exer- cise any other civil or legal right solely by reason of admission to a mental health agency.

B.       An applicant or client is presumed to be legally competent to conduct the client’s personal and financial affairs, unless oth- erwise determined by a court in a guardianship or conservator- ship proceeding.

C.       Only an applicant or client who is competent may provide informed consent, authorization, or permission as required in this Chapter. A mental health agency shall use the following criteria to determine if an applicant or client is competent and the appropriateness of establishing or removing a guardian- ship, temporary guardianship, conservatorship, or guardian- ship ad litem for the client:

1.        An applicant or client shall be determined to be in need of guardianship or conservatorship only if the applicant’s or client’s ability to make important decisions concerning the applicant or client or the applicant’s or client’s prop- erty is so limited that the absence of a person with legal authority to make such decisions for the applicant or cli- ent creates a serious risk to the applicant’s or client’s health, welfare or safety.

2.        Although the capability of the applicant or client to make important decisions is the central factor in determining the need for guardianship, the capabilities of the appli- cant’s or client’s family, the applicant’s or client’s living circumstances, the probability that available treatment will improve the applicant’s or client’s ability to make decisions on the applicant’s or client’s behalf, and the availability and utility of nonjudicial alternatives to guardianships such as trusts, representative payees, citi- zen advocacy programs, or community support services should also be considered.

3.        If the applicant or client has been determined to be inca- pable of making important decisions with regard to the applicant’s or client’s personal or financial affairs, and if nonjudicial, less  restrictive alternatives such  as trusts, representative payees, cosignatory bank accounts, and citizen advocates are inadequate to protect the applicant or client from a substantial and unreasonable risk to the applicant’s or client’s health, safety, welfare, or property, the applicant’s or client’s nearest living relatives shall be notified with an accompanying recommendation that a guardian or conservator be appointed.

4.        If the applicant or client is capable of making important decisions concerning the applicant’s or client’s health, welfare, and property, either independently or through other less restrictive alternatives such as trusts, represen- tative  payees,  cosignatory  bank   accounts,  and  citizen

advocates, the applicant’s or client’s nearest living rela- tive shall be notified with an accompanying recommen- dation that any existing guardian or conservator be removed.

5.        If the client has been determined to require or no longer require assistance in the management of financial or per- sonal affairs, and the nearest living relative cannot be found or is incapable of or not interested in caring for the client’s interest, the mental health agency shall assist in the recruitment or removal of a trustee, representative payee, advocate, conservator, or guardian. Nothing in this Section shall be construed to require the Department or any regional authority or service provider to pay for the recruitment, appointment or removal of a trustee, repre- sentative payee, advocate, conservator, or guardian.

6.        The assessment or periodic review shall identify the spe- cific area or areas of the client’s functioning that forms the basis of the recommendation for the appointment or removal of a guardian or conservator, such as an inability to respond appropriately to health problems or consent to medical care, or an inability to manage savings or routine expenses.

D.       Mental health agencies shall devise and implement procedures to ensure that suspected improprieties of a guardian, conserva- tor, trustee, representative payee, or other fiduciary are reported to the court or other appropriate authorities.

Historical Note

Adopted under an exemption from A.R.S. Title 41, Chap- ter 6 pursuant to Laws 1992, Ch. 301, § 61, effective October 7, 1992; received in the Office of the Secretary of State October 14, 1992 (Supp. 92-4). Amended by

exempt rulemaking at 9 A.A.R. 3296, effective June 30,

2003 (Supp. 03-2).