When something tragic happens to a family member such as a stroke, heart attack or other debilitating illness, whether that person has a general power of attorney in place can be the last thing on anyone’s mind.
But not for long.
As soon as anyone attempts to help manage the crisis, the hassle becomes evident and the problem soon becomes the first thing on everyone’s minds. When that helper is asked to produce a power of attorney document to be permitted to access accounts, make decisions or conduct other business on behalf of the incapacitated person, a confusing and difficult, not to mention expensive, road lies ahead in obtaining the rights needed to help.
Arizona Durable Power of Attorney
A general power of attorney is a document that you prepare giving another adult authority to act on your behalf. It is difficult to think about a tragedy happening and rendering you or a loved one unable to make decisions or communicate. Yet, arranging for a Durable Power of Attorney can save your family the expense and challenge of gaining this right possibly at a time when timing is important. Another example of when you might need a Durable Power of Attorney is when you will be unavailable for a length of time for a prolonged trip, for a work assignment or for another reason you are unavailable. You can identify an agent in a Durable Power of Attorney to manage your affairs while you are unavailable in any of these situations.
When you decide to get a Durable Power of Attorney, you can opt to designate a date for it to become effective or you can simply say if the circumstances arise causing you to become incapacitated, the DPOA becomes effective then. The Durable Power of Attorney needs to include specific language directing how your incapacity or unavailability will be determined. This type of Durable Power of Attorney is frequently referred to as a “springing power”. An experienced attorney can help guide your decision to designate an agent and also assist in drafting the Durable Power of Attorney.
When you identify the agent in your Durable Power of Attorney, being mindful of who to choose is important because the agent is under a high legal duty to act in your best interests. This legal duty is called a “Fiduciary Duty” meaning it is a trusted position of confidence between you, (the person making the Durable Power of Attorney) and the agent. There is always a level of risk involved in giving someone a Power of Attorney. Arizona law ARS 13-1815. Unlawful use of power of attorney; classification explains your rights if you are wronged by the agent. You retain the right to sue your agent if your capacity becomes restored but it is vital for you to choose wisely to avoid these risky results.
The only time you can sign a Durable Power of Attorney and designate an agent is when you are of sound mind. If something happens to diminish your mental capacity, it is too late to sign a Durable Power of Attorney. The only option for your family is to petition the court for a Conservatorship if decisions involving your assets arise. A guardianship is the option for your family if decisions are required about your day to day care such as where you will live, what medical care you will receive or who has access to your belongings. You can and should also name back up individuals to serve if the person you named first cannot or will not serve as your agent. While it is not required to record your Durable Power of Attorney anywhere, you can record it in most counties with the County Recorder’s Office. Our general advice, however, is not to record the Durable Power of Attorney unless it will be needed to handle a transaction involving real estate. The Durable Power of Attorney ends at your death and cannot be used by your agent thereafter.
How to Get Power of Attorney in Arizona
You can find forms of DPOAs on-line or in office supply stores. However, the forms are frequently incomplete or poorly drafted. We DO NOT recommend using such forms. Because of the depth of risk and potential issues surrounding designating someone to manage your affairs, gaining sound advice from an experienced attorney before you draft your Durable Power of Attorney can be extremely helpful. Many find working with an experienced attorney helps achieve peace of mind about your decisions. Call the WLZ law firm today to discuss your Durable Power of Attorney. We can help walk you through the decisions, advise you on your choices, and draft the legal document correctly. Call us today. 520.790.7337.