JANUARY 26, 1998 VOLUME 5, NUMBER 30
The Arizona legislature has just begun its 1998 session, and will be considering a number of measures of interest to seniors and their advisors and advocates. Not all the bills will be adopted, and some may be changed beyond recognition. The proposals still reflect the thinking and direction of at least some of the legislators. A few of the more important proposals include:
Existing laws make it a crime to convert a "vulnerable" adult's funds or property to one's own use. The proposed changes of Senate Bill 1050 would strengthen that law in a number of ways.
One of the most frequent techniques used by exploiters is to establish a relationship of trust and confidence with a vulnerable senior, and then to abuse that trust by transferring assets (often using a durable power of attorney) from the senior's estate. While that sounds like theft, the existing law did not clearly define theft to include such behavior. The new proposal clears up any confusion, making it a crime to take control of a vulnerable adult's property by misuse of such a relationship of confidence. In a separate section, the new law creates a separate category of theft to include abuse of durable powers of attorney.
The proposed new law also would clearly establish the duty of an agent under a durable power of attorney. It would require all acts by the agent to be in the best interests of the principal, and would provide new legal arguments for advocates seeking to recover from exploiters who use powers of attorney.
A decade ago, Arizona adopted a sweeping law intended to crack down on abuse, neglect and exploitation of vulnerable adults. As part of that law, the State Attorney General's Office was required to establish and maintain a list of all persons who had been accused of abuse, neglect or exploitation, whether in criminal court or in civil lawsuits. That registry has been spottily maintained, and has not proved valuable to the advocacy community. The new law would clarify the registry, and provide a mechanism for persons wrongfully accused to argue their position in writing.
Gifts to Minors
The Uniform Transfers to Minors Act provides a simple mechanism for gifts to children. Under the law, a gift can be titled so that it will belong to the minor, but may be managed by someone else. In this way, the gift-giver can effectively create a simple trust without the expense of creating a complex legal document.
One of the attractive elements of the Uniform Transfers to Minors Act has been that the law permits gifts to be held until the recipient reaches the age of 21. Parents and grandparents (the usual donors under the Uniform Transfers law) are uncomfortable with the notion of turning substantial sums over to a child on his or her eighteenth birthday.
Proposed Senate Bill 1159 would remove that three-year comfort zone. Under the new law, Uniform Transfers to Minors Act accounts would have to be distributed to the child on his or her eighteenth birthday.
Many seniors are frightened by the prospect of a protracted and painful death. The possibility exists that pain medication could be withheld from a terminally ill patient because of a misguided concern about addiction. Perhaps more disturbing is the notion that pain medication should be reduced or withheld to prevent an "untimely" death as a result of the suppression of breathing and heart function related to the use of some powerful painkillers.
House Bill 2001 would make it clear that terminally ill patients should be adequately treated for pain. Medical providers would be given clear authority to treat pain, despite the possibility of death or addiction from such treatment. The proposed law would not sanction mercy-killing, but would approve what is already common practice.