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POWERS OF ATTORNEY IN ARIZONA (PART 2) A Closer Look at Some Common Questions and Concerns a Lot of People Have About these Vital Estate Planning Documents

Larry Deason and Shawn Garner Estate Planning and Elder Law Attorneys in Yuma Arizona


A simple power of attorney gives you the ability to delegate decisionmaking responsibilities to one or more agents. As soon as you create the document your agents receive the right to act on your behalf. In our second white paper about powers of attorney in Arizona, we will take a closer look at some common questions and concerns a lot of people have about these vital estate planning documents. As with any legal document, it’s always important for you to consult your attorney before you make any decisions regarding a power of attorney. You should never try to create this document on your own, and should always be sure that the choices you make match the goals you are trying to achieve. To that end, here are several issues related to using and creating powers of attorney with which you should be familiar.

Powers of Attorney and Durable Powers of Attorney A simple power of attorney gives you the ability to delegate decision-making responsibilities to one or more agents. As soon as you create the document your agents receive the right to act on your behalf. Because a power of attorney conveys to your agent the right to make the kinds of decisions you are able to make, your agent loses that decisionmaking authority if and when you become incapacitated. Should you lose the ability to revoke or modify the power of attorney, your agent will automatically lose his or her right to represent you. However, there is one significant exception to this automatic-termination-uponincapacitation principle. You can allow your agent to continue to represent your

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interests if you create a durable power of attorney. When you craft a durable power you give an agent the authority to act even if you lose your ability to terminate the relationship. Because agents can continue to represent you should you become incapacitated, durable powers of attorney are essential estate planning tools when you create an incapacity plan.

Springing Powers While we are talking about incapacitation planning, there is another type of power of attorney with which you should be familiar. The springing power of attorney is a commonly used tool that a lot of people find useful because not only does it give you the ability to name an agent, but it also allows you to limit that agent’s authority. For example, let’s say that you want to be cautious and create an estate plan that protects you in the event you become incapacitated. You are currently capable of managing your own affairs and don’t feel comfortable with the idea of giving decision-making authority to another person. In this situation, creating a springing durable power of attorney is probably the right thing to do. With the springing power of attorney, your agent’s ability to represent your interests does not begin until a specific event takes place. Usually, the event that triggers the agent’s authority is your incapacitation, usually defined as one or more doctors

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determining that you have lost your ability to make decisions. When this happens, the powers you granted your agent through the springing power of attorney will automatically give that agent the right to begin representing your interests and protecting your affairs.

Agent Service and Termination So what would happen if, for example, you become incapacitated, your agent begins managing your affairs, and then you regain your abilities? Would your agent still be able to represent you, or would you represent yourself? Though the answer to this question depends on the type of power of attorney you create, and what your wishes are, there are several possibilities. First, as a principal, you have the ability to create whatever kind of power of attorney you like. If you wish to place limitations on your agent’s abilities, you can do this. One of these limitations might be, for example, to give your agent the ability to represent you only in the event you are incapacitated. If you so choose, you can create a power of attorney that states your agent’s authority automatically terminates should you regain your ability to represent yourself. Second, even if you don’t create a power of attorney that automatically terminates and agent’s authority, you retain the ability to fire your agent at any time as long as you are capable. For example, if you create a power of attorney that appoints an agent that has the ability to represent you from the moment you create the document, that agent can only serve as long as you allow him or her to. If you should one day decide that you don’t want your agent to represent you any longer, or you want to hire a new agent, you can fire the current agent whenever you wish.

Copyright 2013. Powers of Attorney in Arizona: Part 2 of 2

Deason Garner Law Firm

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Agents and Death Regardless of the kind of power of attorney you create, or the specific terms and conditions you include within the document, an agent will automatically and immediately lose his or her ability to represent you once the agent learns that you have died. All powers of attorney automatically terminate upon the death of the principal. Specifically, the agent loses his or her ability to represent a principal when that agent learns the principal has passed away. For example, let’s say you have appointed an agent under financial power of attorney. You die, but your agent doesn’t learn of your death until several days later. In the time between your actual death and the agent learning of your death, your agent retains the right to represent you under the terms of the power of attorney you created.

Beyond Power of Attorney Now that you know a lot more about power of attorney, it’s important to remember that these documents, though important, are not sufficient to meet all of your estate planning needs. The best estate plan includes several different tools, each of which is individually crafted to meet various goals or needs. Whether you are creating a power of attorney, living will, or any other type of estate planning document, you should never create these tools in a vacuum. Always create an estate plan in light of the overall goals you have established. With the help of your estate planning attorney, you can ensure that each tool you create will complement the other.

Copyright 2013. Powers of Attorney in Arizona: Part 2 of 2

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About the Authors Larry Deason

Shawn Garner

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 the firm he regularly conducts Free monthly seminars on various Estate Planning topics. Deason and Garner, along with their staff, 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. The firm is always available for both Arizona residents and visitors alike to offer additional information about options with available with estate planning. Deason Garner Law Firm 242 West 28th Street, Suite A Yuma, AZ 85364 Phone: (928) 783-4575 www.DeasonGarnerLaw.com

Copyright 2013. Powers of Attorney in Arizona: Part 2 of 2

Deason Garner Law Firm

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Powers of Attorney in Arizona  

A closer look at some common questions and concerns a lot of people have about these vital estate planning documents.

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