Powers of Attorney
A Second Pair of Hands
There are several different kinds of power of attorney in Arizona and they can be divided into categories based on their scope, their duration, their purpose, and their effective date. However, what they all have in common is that they allow one person (called a "principal") to choose one or more other person(s) (known as the "agent(s)") to make decisions or take actions that usually only the principal could do. Because all powers of attorney are delegations of authority from the principal to an agent, it is always the principal's decision whether to create a power of attorney and how to set it up. If you believe someone else needs a power of attorney, the best thing you can do is help that person contact a qualified Arizona estate planning lawyer for advice. If the other person is not able to communicate with an attorney, you may need to investigate guardianship instead.
General vs. Limited
In Arizona, powers of attorney can be "limited," meaning they allow the agent to do only the very specific things listed in the document, or they may be "general," which means that the agent may exercise several different powers described in the document within the agent's discretion. If you anticipate that you will need another person for a specific reason and at a specific time, it is often preferable to use a limited power of attorney because it can assure third parties that the agent really does have your permission to perform the task you described in the document. One fairly common example of this is granting someone a limited power of attorney to close on a real estate transaction when you will be out of town on the date of the closing.
Most of the time, though, the need to have someone else handle a task for you comes up when you are not expecting it, such as when you incapacitated by an injury or illness. In these cases, your agent needs a general power of attorney because they will likely need to perform several different tasks in order to handle your affairs until you recover. An experienced Arizona estate planning lawyer can help create a general power of attorney that is broad enough to cover what the agent will need to do while still being specific enough that a third party will be likely to accept it.
Durable vs. Temporary
As a general rule, a power of attorney is temporary. It lasts a maximum of 12 months, and only as long as the principal who granted it continues to have the capacity to make decisions for themselves. A "durable" power of attorney gets around these limitations and allows the authority granted by the document to go on until it is revoked by the principal or automatically terminated when the principal passes away. In order to create a durable power of attorney, it is necessary to clearly state in the document that the principal intends that the agent may continue to act regardless of the passage of time or the principal's incapacity.
Financial vs. Medical
According to A.R.S. section 14-5507, one set of requirements applies to powers of attorney that are going to be used for legal or financial matters, while a different set of requirements, found in Title 36, Chapter 32 , applies to powers of attorney for medical and mental health issues. As a result, most people actually require at least two general, durable powers of attorney: one for financial and legal matters, and a second for medical matters. A power of attorney with a generic title like "General Power of Attorney," "Durable Power of Attorney," or even just "Power of Attorney" is most likely a financial power of attorney. Medical powers of attorney do not automatically allow the agent to make psychiatric decisions, so if the principal wants the agent to have that authority, they must be specific about those wishes, either as part of their medical power of attorney, or in a separate power of attorney document dealing exclusively with mental health issues.
Immediate vs. Springing
One final consideration when creating a power of attorney is whether it should be effective right away, or if it should "spring" into effectiveness only when some event occurs (for example, the principal becomes incapacitated). An immediately effective power of attorney allows the agent to begin taking action on the principal's behalf right away, while the springing power of attorney ensure that it will only be used when it is needed by requiring the agent to prove that the principal is incapacitated (typically with a written statement from a qualified physician). Immediate and springing powers of attorney can both be effective; which version is best in a specific case depends on the circumstances and whether the principal is more concerned with efficiency or security.
Any power of attorney is more than just a simple form; it's a contract that creates important rights and obligations for both sides and so before creating or using a power of attorney, it's always best to consult a knowledgeable Arizona estate planning lawyer for advice.
