By Faith Helgesen.
Earlier this year, the governor of Arizona signed SB 1291. This bill stipulates that a guardian has the burden to prove by clear and convincing evidence that requested contact with an incapacitated person will be detrimental to the ward’s health, safety, or welfare. It also establishes a supported decision-making agreement form. The agreement authorizes a supporter to assist the incapacitated person in understanding options, responsibilities, and consequences of life decisions. This also allows incapacitated adults to choose where they want to live and what services and care they want to receive.
On its face, SB 1291 prevents probate abuse—and ideally promotes independence and choice in people who would otherwise be subject to a guardianship and/or conservatorship. A person may become a guardian by parental, spousal, or court appointment. And a person may become a conservator after certain statutory guidelines are met. But this bill may have negative implications for those with severe mental illness.
History of Severe Mental Illness Services In Arizona
Severe mental illness is a designation that includes “mental, behavioral, or emotional disorder[s].” It results in serious functional impairment that substantially interferes with or limits one or more major life activities. After the deinstitutionalization movement in the 1960s and 1970s, many people with severe mental illness were released with no community support system: They had no housing, no counseling services, no access to behavioral health treatment, no vocational programs, and no plan to reintegrate into the community.
But in 1981, individuals with severe mental illness filed a class action lawsuit against Arizona. These plaintiffs alleged the Arizona Department of Health Services, the Arizona Division of Behavioral Health Services, and Maricopa County failed to provide a comprehensive mental health system for those with severe mental illness.
This hallmark case, Arnold v. Sarn, revolutionized the mental health landscape in Arizona. Decades after this litigation started, the Arizona Department of Health Services, Maricopa County, and the Office of the Governor agreed to provide Assertive Community Treatment, Supported Employment, Permanent Housing, and Consumer Operated services for individuals with severe mental illness.
Current Effects of Severe Mental Illness In Arizona
Many Phoenicians are all too familiar with the severe mental illness crisis in Arizona. Despite the state’s progressive policies for those with severe mental illness, many of these individuals are not receiving the treatment or help they need.
Mental health advocates coined the term “revolving door” to describe the exhausting cycle people with severe mental illness endure. From behavioral health centers to run-ins with the police, visits to emergency rooms, and homelessness, people with severe mental illness get trapped in a devastating cycle.
This cycle creates barriers for families who want to help adult children with severe mental illness. Providers and hospitals may refuse to speak with family members because of privacy concerns. If parents are not the legal guardians of their adult child, they cannot access their child’s treatment plans. Concerned family members are often unable to get help for the person with severe mental illness unless there is a guardianship or conservatorship in place. And even then, those with severe mental illness remain significantly disadvantaged.
Effects of SB 1291
Although probate reform is an important issue, SB 1291 could cause more harm than good. By creating more barriers to guardianships and conservatorships, this “Supported Decision-Making” law greatly disadvantages individuals in society who cannot make informed decisions for themselves. This bill should promote individual choice and prevent probate abuse. But giving an incapacitated individual the autonomy to decide whether to receive treatment may have harmful consequences.
For example, one mother whose son had schizophrenia shared her experience with the broken mental health system. She tried to keep him at home, but she could not compel him to stay home because he was an adult, and she was not his legal guardian. Ultimately, her son died on the streets, while she thought he was receiving treatment. Too often, parents of adult children with severe mental illness are not given access to hospital and behavioral health records. They have few means to ensure their adult children receive the care they need.
When an individual with severe mental illness does not have a legal guardian, they may be discharged from a hospital without a coordinated plan for housing and treatment in place. The individual has few options. They may live on the streets, run away due to untreated delusions, or even commit suicide. Although the existence of a guardianship or conservatorship does not resolve the shortcomings of Arizona’s mental health system, it helps create a safeguard to protect individuals with severe mental illness. A guardian can advocate for the individual’s right to insist that a treatment plan be agreed upon before being discharged from a jail, hospital, or behavioral health facility.
People with severe mental illness need advocates. Although there is concern for probate abuse, SB 1291 may harm those who need protection. Arizona may need reform and accountability surrounding its probate laws, but this should not be at the cost of individuals with severe mental illness.
Moreover, under SB 1291, an individual may appear capacitated, receive autonomy over decision-making, and still be vulnerable. This would result in a slippery slope in terms of protections for those with severe mental illness. According to many advocates, there are far more cases of dangerous and disabled individuals who need and would benefit from a guardianship than examples of guardian misconduct and abuse. What was advertised as a protection for Arizona’s vulnerable adults may serve as a barrier to treatment and services for them.
By Faith Helgesen
J.D. Candidate, 2025
Faith is a 2L at Sandra Day O’Connor College of Law and a staff writer for the Arizona State Law Journal. She grew up in Silicon Valley but moved to Albuquerque halfway through high school. In her free time, she loves to go paddle boarding, hiking, and swing dancing.