Arizona Administrative Code › Title 9 - HEALTH SERVICES › Chapter 21 - ARIZONA HEALTH CARE COST CONTAINMENT SYSTEM (AHCCCS) BEHAVIORAL HEALTH SERVICES FOR PERSONS WITH SERIOUS MENTAL ILLNESS › Article 2 - RIGHTS OF PERSONS WITH SERIOUS MENTAL ILLNESS › Section R9-21-206 - Competency and Consent

Current through Register Vol. 30, No. 28, July 12, 2024
A. A client shall
				not be deemed incompetent to manage the client's affairs, to contract, to hold
				professional, occupational or vehicle operator's licenses, to make wills, to
				vote or to exercise 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 otherwise determined by a court in a guardianship or conservatorship
				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 guardianship, temporary
				guardianship, conservatorship, or guardianship 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 property is so limited that the absence of a
				person with legal authority to make such decisions for the applicant or client
				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 applicant'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, citizen advocacy programs, or community support
				services should also be considered.
3. If the applicant or client has been
				determined to be incapable 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, representative payees, cosignatory bank accounts,
				and citizen advocates, the applicant's or client's nearest living relative
				shall be notified with an accompanying recommendation 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
				personal 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
				Chapter shall be construed to require the Administration or any health plan or
				service provider to pay for the recruitment, appointment or removal of a
				trustee, representative payee, advocate, conservator, or guardian.
6. The assessment or periodic review shall
				identify the specific 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.