AUGUST 31, 1998 VOLUME 6, NUMBER 9
Last week in Elder Law Issues we reported on changes in Arizona's law governing durable powers of attorney. We explained that financial powers of attorney must now include specific language and provisions, or they may be invalid. The change was one product of the annual legislative session, completed last May; most new laws became effective August 21 (one key provision of the power of attorney legislation became effective on August 1).
Powers of attorney were not the only elder-related topic addressed by this year's Arizona legislature. In other new laws the legislature provided that:
- Up to $50,000 worth of personal property can be collected by heirs after the death of the property owner without having to go through the probate process. The change increases the amount which may be collected by what some call a "small estates affidavit" from $30,000. There was no change in the value of real estate which can be collected through a similar (though slightly more complicated) procedure; it remains fixed at $50,000. Taken together, the two provisions mean even an estate of $100,000 may be processed without having to go through a full probate proceeding.
- The same small estates process can be used when a full probate has been completed and additional assets (up to the $50,000 figure) are later discovered. This makes it easier to collect assets that are overlooked during the original probate proceeding, a problem which arises surprisingly often.
- Children under fourteen no longer have to be formally served with notice of conservatorship proceedings. "Formal" service is accomplished by having a process server personally hand a copy of court pleadings to the person being served. During a revision of the laws two years ago, the exemption from personal service for young children was inadvertently deleted, and this year the legislature corrected the mistake. It will no longer be necessary to have a process server deliver documents to toddlers, but fourteen-year-olds will still be entitled to receive a copy of court pleadings affecting their estates.
- Court-appointed conservators have been given clear power to revoke powers of attorney. Under prior law, it was not clear whether a power of attorney remained effective if the signer later had a conservator appointed. Under the new provision, the conservator has the power to not only handle the ward's money, but also to revoke any powers of attorney which may be outstanding. Of course, most people who have executed powers of attorney will never find themselves in conservatorship proceedings; when they do, it is most likely because the agent under the power of attorney has either failed to act or has abused the power.
- An agent under a power of attorney is guilty of theft if he (or she) "unlawfully deprives" the signer of her (or his) property. Obviously, taking the principal's money will invoke this criminal statute. So might making gifts to the agent's children or others, or investing the money in businesses which benefit someone other than the principal.
- Nursing homes, adult care homes and home health agencies must now take steps to ensure that new employees do not have a history of abuse of vulnerable adults, sexual abuse, murder, domestic violence, fraud or a list of other offenses. As part of this provision, adult care employers must submit fingerprint samples for all employees, and they are also required to make documented, good faith efforts to secure valid reference checks on all new employees.
None of the changes will revolutionize the protections given to elderly adults and children. Taken together, however, they may better serve these vulnerable citizens.