Durable Powers of Attorney in Estate Planning

A durable power of attorney is an important component of any comprehensive estate plan. Simply stated, a durable power of attorney is a document by which one person appoints another person to make financial decisions for him or her if they are subsequently disabled or incapacitated. Properly executed, it can save both time and money in managing the financial affairs of a person who becomes disabled or incapacitated.

In a durable power of attorney, one person (the “principal”) designates another person as his agent. Both the principal and agent must be 18 years of age or older. The document must contain words showing the principal’s intent that the authority granted in the durable power of attorney may be exercised if the principal is subsequently disabled or incapacitated, regardless of how much time has elapsed (unless the document states a termination date). A durable power of attorney may become effective upon its execution, or it may become effective upon the principal’s disability or incapacity (a so-called “springing” power of attorney).

By executing a written power of attorney, a principal may designate an agent to make financial decisions on the principal’s behalf. The power of attorney must contain language that clearly shows the principal intends to create a power of attorney and identifies the agent. It must be signed by the principal (or, in rare cases, by someone else for the principal), and must be properly witnessed and notarized. The witness cannot be the agent, the agent’s spouse, the agent’s child, or the notary public. (The execution requirements are set forth in A.R.S. Section 14-5501, the text of which is available on the Arizona State Legislature’s website, www.azleg.gov.)

A person may nominate in a durable power of attorney a conservator or guardian for consideration by the court if protective proceedings for him or his estate are commenced.

Any act done by an agent pursuant to a durable power of attorney while the principal is disabled or incapacitated binds the principal as if he were not incapacitated or disabled.

A person who is in a position of trust and confidence to a vulnerable adult must use the vulnerable adult’s assets solely for the vulnerable adult’s benefit, unless the transaction is specifically authorized in a valid durable power of attorney that is executed by the vulnerable adult as the principal, or unless certain other exceptions apply. An agent who holds a principal’s power of attorney and who uses or manages the principal’s assets or property with the intent to unlawfully deprive that person of the asset or property is guilty of theft and may be criminally prosecuted.

Some Other Rules

A power of attorney executed in another state is valid in Arizona if it was validly executed in the state in which it was created.

If the agent acted with intimidation or deception in obtaining the power of attorney, he is subject to criminal prosecution and civil penalties.

A power of attorney is invalid if it was executed by an adult who was incapable of understanding, in a reasonable manner, the nature and effect of his actions.

A power of attorney may be revoked by the principal.

A power of attorney may contain a termination date.

The death of the principal terminates the authority granted to the agent by the document (when the agent learns of the principal’s death).

A durable power of attorney does not establish authority for an agent to make health care decisions for his principal.

Legal Tip

As with other estate planning documents, it is important that the power of attorney be properly drafted and executed. For this reason, an attorney should be consulted to handle the matter. (For the price, it is fairly cheap insurance to protect against drafting and execution errors.)