An Arizona durable power of attorney form lets someone (the “agent”) legally act and make financial decisions for another person (the “principal”). Unlike a regular non-durable power of attorney (POA), a durable one (DPOA) stays in effect even if the principal becomes incapacitated and legally can’t make their own decisions.
To give an agent power over your medical decisions if you become incapacitated, you must complete a separate form called a “Medical Power of Attorney.”
Laws
Power of attorney forms can be made durable by including either the following or similar language:
“This power of attorney is not affected by subsequent disability or incapacity of the principal or lapse of time.” / “This power of attorney is effective on the disability or incapacity of the principal.”
- Statute: Title 14, Chapter 5, Article 5 (Powers of Attorney).
- Presumed Durable: No (§ 14-5501(B)).
- Signing Requirements: The principal’s signature, witnessed by a person other than the agent, the agent’s spouse, the agent’s children, or the notary public (§ 14-5501(D)).
- Notarization: Requires notarization.
- Statutory Form: No.
Definitions
Durable – As opposed to a standard power of attorney (not labeled as “durable”), a DPOA doesn’t lose its validity upon the principal’s incapacity (§ 14-5504).
Power of Attorney – “Durable power of attorney” is a legal document through which a principal appoints another individual as their agent (§ 14-5501(A)).
Specific Powers and Limitations
Restrictions on Gifts and Transfers
While a DPOA allows an agent to manage the principal’s finances, there are limitations on their gift-giving authority.
Types of Gifts:
- Personal gifts of small value: The agent can give customary gifts for occasions like birthdays and holidays, provided the value is reasonable considering the principal’s financial situation.
- Charitable donations: Gifts to their usual charitable organizations are generally allowed if consistent with past giving patterns.
Considerations:
- Substantiality and proportionality to the principal’s assets and financial circumstances.
- The principal’s wishes and intentions.
- The principal’s financial well-being and overall quality of life.
- Avoiding conflicts of interest.
Agent’s Authority Limitations
The limitations on an agent’s authority come from a combination of the following:
- The scope of the power of attorney: This is the primary source of limitations. The document should clearly define what the agent can and cannot do. If the form is silent on a specific action, the agent cannot take it.
- Fiduciary duty: The agent has a legal and ethical obligation to act in the principal’s best interests, which inherently limits their actions.
- Established legal principles: There are certain actions an agent cannot take, even if the POA doesn’t explicitly forbid them. These include engaging in transactions that benefit the agent at the principal’s expense or taking any actions that violate the law or public policy.
Revocation and Termination
The authority given to the agent can be revoked at any time, as long as the principal is mentally competent to understand the consequences of their action. There are several ways to achieve this:
- Creating a new document.
- Signing a revocation form.
- Providing a written notification.
By operation of law (§ 14-5504), the death of the principal automatically revokes the agent’s authority.
Safekeeping and Registration
There is currently no central state-wide registry for DPOAs, which means they don’t need to be registered with any government agency. What you should do is:
- Keep the original securely: Store it in a safe deposit box or another secure location where you and your agent can easily access it when needed.
- Provide copies to agent and trusted individuals: Consider also providing copies to financial institutions you regularly deal with (like banks) and your attorney (if applicable).
- Review Periodically: Ensure that it still reflects your wishes and that the named agent(s) are still appropriate choices.
Some counties may offer the option to record legal documents, including DPOAs, with the county recorder’s office, which can provide an additional layer of protection and public notice.
Additional Resources
- State Bar Association Website: Related information and resources for the public, including articles and guides.
- Secretary of State Website: Guidance or information on the proper execution and documentation of legal instruments.
- Judicial Branch Website: Resources or information related to legal matters.
- Attorney General’s Office: A helpful guide on powers of attorney in the state.
