Failure To Plan May Result In Court Naming Surrogates

AUGUST 30, 1999 VOLUME 7, NUMBER 9

When an adult becomes incapable of handling his or her own personal and financial affairs, someone must step forward and pay bills, make medical decisions and handle a host of daily decisions. Court proceedings, agency investigations and the plans made by the adult before becoming incapacitated will all affect who makes those decisions and under what authority.

Many adults (but still a minority) take steps to select a surrogate decision-maker in advance. By executing a durable power of attorney, a competent adult can designate the person who will handle financial decisions; a durable healthcare power of attorney can make a similar designation for medical decisions. The names of either document may vary; in Arizona, at least, the title of the document is not as important as its contents.

For the majority of adults who never get around to signing documents in advance, the law provides a mechanism for designating someone to make decisions. The law on these interrelated issues tends to vary significantly by state, so it is important to seek competent legal advice in the appropriate state. Arizona’s surrogate decision-making structure is typical in many ways, but unique in others.

Arizona, like about half of the states, has a law permitting someone to make medical decisions for an incompetent patient, even if the patient never executed an advance medical directive of any kind. Arizona’s law does limit the ability of such a surrogate—he or she may not consent to the withdrawal or withholding of artificially supplied food and fluids—but for most medical decisions, the surrogacy law works very effectively.

There is no similar law, however, for financial decisions. Married couples are often surprised to learn that a spouse, for example, is not empowered to make financial decisions for his or her ill partner. There are a number of circumstances in which someone may have to approach the courts for authority to act for an incapacitated adult, including when:

Financial decisions must be made.
The health care surrogate is unavailable, or fails to act.
The person named in a power of attorney fails to act, or misbehaves in some way.
The agent in a durable power of attorney dies or becomes incapacitated, and no alternate has been named.

The court process for designation of a formal surrogate is called (in Arizona) guardianship and/or conservatorship. The two kinds of proceedings are easy to separate—a guardian has control of the incapacitated adult’s medical care and placement, and the conservator has control over finances. Both processes involve a court hearing, notice to the incapacitated person (who must be actually served with the petition for guardianship and/or conservatorship), appointment of an attorney and court investigator for the proposed ward, and continuing court oversight of the guardian or conservator’s actions for the duration of the ward’s incapacity.

Guardianship and conservatorship proceedings can be expensive, time-consuming and (for the ward, at least) humiliating. At the same time, they provide oversight and protection in the handling of funds and medical decisions.

Most people would prefer not to involve the courts in managing their personal affairs; the only effective way to avoid such a result is to execute healthcare and financial powers of attorney while still competent. By such advance planning court proceedings can usually be avoided, though a guardian or conservator may still be necessary if the agent fails to act properly.

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