POWERS OF ATTORNEY IN ARIZONA A Closer Look at What these Tools Are, How You Use them, and What Role They Play in a Comprehensive Estate Plan
Larry Deason and Shawn Garner Estate Planning and Elder Law Attorneys in Yuma, Arizona
A power of attorney is simply a specific type of legal document. The document will give you the ability to give someone else the right to make decisions on your behalf. Anyone creating an estate plan in the state of Arizona will invariably create one or more powers of attorney. Unfortunately, the average person has almost no experience with these important legal tools. As a person creating an estate plan, taking the time to educate yourself about powers of attorney, familiarizing yourself with what they do, and getting a better understanding of what role they play in your plan will avoid confusion later on. In this first of two articles on powers of attorney, we’re going to take a look at what these tools are, how you use them, and what role they play in a comprehensive estate plan.
Powers of Attorney and Attorneys To begin our discussion on powers of attorney, let’s take a step back and clarify some potentially confusing language. A power of attorney, despite its name, has nothing to do with lawyers. Even though your lawyer will create a power of attorney for you, the term “power of attorney” in no way means that you have to have any experience with the law, or use a lawyer when you employ these documents.
A power of attorney is simply a specific type of legal document. The document will give you the ability to give someone else the right to make decisions on your behalf. For purposes of this document, the term “attorney” simply means “representative.” It has nothing to do with people who practice law as a profession.
Becoming a Principal There is another term you might come across when dealing with powers of attorney that can cause confusion. That term is “principal.� When used in relation to a power of attorney, a principal is a person who chooses to appoint another as his or her representative. To become a principal you have to be a mentally capable adult. Someone who is mentally capable is able to make his or her own decisions. Most people are mentally capable, though some are not. For example, people suffering from dementia or other mind altering medical conditions, people who have serious drug or alcohol addictions, or people who have been judged by a court to be mentally unsound are not capable of making a power of attorney.
Appointing an Agent When you choose to become a principal you appoint a representative. The person or organization you appoint as your representative becomes known as your agent. An agent has a legal obligation to do what is in your best interests. Your agent will be responsible for performing the duties or tasks you assign in the power of attorney documents. The types of duties and agent will have to perform differ from situation to situation because no two powers of attorney are identical. Though the documents must meet specific legal criteria under Arizona law, the conditions and terms that a principal chooses to include in them can differ significantly. Depending on the type of power of attorney you create, you might choose one or more agents. For example, it is quite common for people to create a power of attorney for finances and one for medical decisions. In each document you might use a different person or organization to serve as your agent.
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Though you can choose anyone you like as your agent, you must be sure that person or organization is willing to serve. Just as you are free to create or not create a power of attorney, an agent you nominate is free to accept or decline the nomination. Agents, like principles, must be adults of sound mind. When you choose an agent, it’s also an excellent idea to include a successor or replacement agent who will be able to take over the agent’s duties if your first choice cannot or will not serve. As you create power of attorney you might hear the term “attorney-in-fact.” Again, this term has nothing to do with
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lawyers or those who practice law. An attorney-in-fact is
And
simply a synonym for agent. Anyone you name as your agent will also be known as your attorney-in-fact. You do not have to choose an attorney or lawyer to serve as your agent, and the agent you choose does not earn the right to begin
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agent some or all of the decision-making rights you possess.
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practicing law once he or she becomes your attorney-in-fact.
Delegating Your Powers Your agent under power of attorney will be your representative. What will that person be allowed to do? That is up to you. Through your power of attorney you give your
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the ability to make decisions for you in almost any area of your life. For example, if you choose to go on vacation, you can use a power of attorney to appoint someone to not only take care of your bills and manage your home, but also manage your business. The powers you choose to give your agent are entirely up to you. Your power of attorney is partially defined by the extent of the decision-making abilities you give your agent. If you create a general power of attorney, you give your agent all the decisionmaking rights you are legally allowed to give. On the other hand, if you don’t want to give broad powers to your agent, you can limit the types of decisions your agent can make. When you choose to do this, you create limited powers of attorney. Some limited powers of attorney are extremely limited, giving an agent the right to take one specific action at one specific time, while others give broader rights that are nevertheless still somewhat limited.
Using Your Powers Because powers of attorney are so flexible you have to create them in light of your overall estate planning goals and choices. Your estate planning lawyer will guide you through this process, but it’s important to remember that you control what you want your agent to do. If you’d like more information, contact our office and schedule an appointment so we can discuss powers of attorney in more detail.
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About the Authors Larry Deason and his staff have been providing quality legal services for clients since 1971. Their mission is to assist people who are concerned about protecting their families from the devastating legal and financial impacts of disability, death, and taxes. Because he believes in the importance of an informed public, Deason spends considerable time educating consumers about Estate Planning issues. He writes a monthly Estate Planning column in The Sun, and he regularly conducts seminars on various Estate Planning topics. Larry Deason
Deason and his staff believe that in many instances Living Trusts offer clients a proven and powerful tool for protecting their families from the expense and delay of probate, as well as a strategy for eliminating or minimizing federal taxes. Deason’s firm is staffed with paralegals and consultants who are experienced and trained in a variety of Estate Planning areas. The aim of each member of the firm is to help clients accomplish their Estate Planning goals while taking the mystery out of the whole process. We take pride in knowing that our clients feel “peace of mind� once the planning process is completed.
Shawn Garner
In 2008, Mr. Garner began practicing law in Yuma in the fields of commercial litigation and bankruptcy. In 2011, Mr. Garner switched his field of practice to exclusively estate planning because he found it more rewarding to help people avoid the costs and stresses associated with litigation more than trying to resolve disputes through litigation and court intervention
Deason Garner Law Firm 242 West 28th Street, Suite A Yuma, AZ 85364 Phone: (928) 783-4575 www.DeasonGarnerLaw.com