Posts Tagged ‘health care power of attorney’

Probate Judge’s Unique Guardianship Orders Overturned

At Fleming & Curti, PLC, we handle a lot of guardianship and conservatorship proceedings. We even act as guardian (of the person) and/or conservator (of the estate) in some cases — particularly when family members are unavailable or unable to agree on the best course of action. But one thing we consistently maintain: if there is any reasonable way to avoid a guardianship or conservatorship proceeding, it should be explored first. Court proceedings are expensive, interfere with the autonomy of the subject of the proceedings, and seldom result in entirely happy outcomes.

The most common way to avoid guardianship and conservatorship, of course, is for a person to sign a durable power of attorney (two, actually — one for health care and another for financial authority) naming someone to act on behalf of the signer. When confronted with a preexisting power of attorney, probate judges normally will appoint a guardian or conservator. Of course, if the person named in a power of attorney is acting improperly, the court will not hesitate to intervene. But usually a valid power of attorney avoids the need for court proceedings.

Of course, some family disputes can be intense — and often over the oddest and smallest issues. Take, for example, the case of Hazel McNabb (not her real name), an 89-year-old Indiana woman with six children. Her family’s disagreements arose, and hardened, over what to do after Hazel’s home was damaged by a tornado in 2013. Two of her children thought the bathroom could be repaired and used after the storm; four children felt that her bathroom should be remodeled.

Almost a decade before, Hazel had signed health care and financial powers of attorney, naming son Patrick and daughter Molly as co-agents. It was Molly and Patrick who thought no remodeling was required, and the other four children (Michael, Bridget, Kevin and Gabrielle) complained that, in the aftermath, Molly had begun to isolate them from their mother and cut them out of the discussions about her care.

Believing that Hazel’s mental faculties were declining, and that Patrick and Molly could not be trusted to act in her best interests, Kevin filed a petition asking for appointment of the four children as co-guardians. The probate judge held a hearing, and fashioned an unusual order: the judge appointed all six children as co-guardians, each with specific, limited authority.

Under the probate judge’s order, Michael (a priest) was appointed as guardian over Hazel’s “spiritual needs and affairs.” Bridget, a hairstylist, was appointed guardian over Hazel’s “health care needs and hygiene” (and specifically instructed to ensure that her hair and nails were styled on a regular basis). Molly, who had been named in the power of attorney, was appointed as guardian over Hazel’s “personal” finances (what in Arizona we might call conservatorship — though the limitation to “personal” finances is confusing). Kevin and Patrick were appointed as co-guardians to handle Hazel’s “business ventures” (though the nature of those business ventures is not clear from the appellate court opinion). The probate judge also set out a schedule of visitation to make sure each child would have regular contact with Hazel.

At the same time he entered this complicated order, the probate judge instructed all Hazel’s children that they needed to work together, and to keep Hazel’s interests in mind at all times. He directed that they were all to consider Hazel’s “input and feelings concerning a specific issue before making a decision.”

One odd result from this order is based on Indiana’s law on guardianship: if a preexisting power of attorney is in place, a guardian has no authority over the items managed through the power of attorney unless the probate judge expressly orders revocation of the power of attorney. Since that was not done in Hazel’s case, it meant that Patrick and Molly, the two agents, would still have authority over all health care and financial decisions. Unsurprisingly, those two children declined to accept their appointments as, essentially, limited conservators of a portion (each) of Hazel’s property. Instead, they appealed the probate judge’s findings and order.

Molly and Patrick argued that Hazel was not, in fact, incapacitated at all — and if she was, no guardian was necessary because the power of attorney was working as she had intended. The Indiana Court of Appeals disagreed about the finding of incapacity, but agreed that the existence of the power of attorney might make the unusual guardianship order unnecessary.

According to the appellate court, when a power of attorney is in place it might be unnecessary to appoint a guardian at all. In fact, since the power of attorney was not revoked by the probate judge, the guardians really had no power — the agents named in the power of attorney held all the authority. While agreeing that Hazel was incapacitated, the Court of Appeals reversed the order appointing multiple guardians and remanded the case for the probate judge to reconsider whether there was any need for a guardianship at all. Guardianship of Morris, July 12, 2016.

The probate judge in Hazel’s case should probably be commended for his attempt to bring her family back to the table to discuss her care together. Nonetheless, consideration for her wishes should mean that the default outcome will be recognition of her power(s) of attorney — unless it can be shown that the agents are behaving inappropriately, or failing to act.

Would the same result occur in Arizona courts? Probably not — or at least not for the same reasons. Arizona does not have a law like the Indiana statute giving continuing priority to agents under a durable power of attorney. Instead, the relative authority between a guardian, conservator and agent under one or more powers of attorney are somewhat unsettled in Arizona law. A person is able to indicate their preference for who should be appointed as guardian or conservator, and in practice a power of attorney will usually avoid the need for court involvement — but there is less clarity about the legal status than in Indiana law.

Dad (Mom), We Need to Talk


This week, a letter from Fleming & Curti, PLC attorney Amy Farrell Matheson, addressed to a father (not, as it happens, her father so much as your father):

Dad, we need to talk:

We love you and want the best for you. Over the past few months, we’ve noticed some things that are concerning to us. It makes us wonder if we should begin giving you some extra help around the house.

For example,

  • We have found late notices and even shut off notices from the electric company and the water company; this makes us worry that your bills aren’t getting paid on time. Your filing system was always so organized, but now we find papers jammed in every which way. It’s hard for us to tell what bills have been paid.
  • You and Step-Mom have always kept a lovely home, but now there are newspapers and unopened mail piling up, and the yard hasn’t been tended to. The refrigerator has expired and rotting food in it.
  • And your car has a scrape along one side that we don’t remember seeing before.

We respect your privacy and we understand that it’s important to you to manage your household as you see fit. If there are some things that we could do to help lighten the load, we would like to help.

It would help us if we had a better understanding of how your finances are arranged, so that if we needed to step in and help out, we could do so easily. For example, would you like one of us to arrange it so that we can view your banking accounts online? That would allow us to help you balance your checkbook and avoid bank fees for returned checks. We could help you arrange for automatic payments for utilities, rent/mortgage, and insurance, so that you aren’t having to pay late fees. We could remind you to take the required distribution from your IRA this year; you know there’s a penalty for that if you don’t.

One of us could help you prepare your income tax returns, or help you assemble the documents that you will need to take with you to the accountant.

We have been thinking about when Aunt Bertha fell and broke her hip, and how hard it was for her kids to figure out how to pay her bills while she was in the hospital. There was a lot of stress and some hurt feelings because none of the kids knew who was in charge. Everyone had a different idea of how to take care of Aunt Bertha. And the bank wouldn’t talk to any of the kids without a power of attorney. As uncomfortable as it might be for you to open up to us about these things, it would really be better to have a discussion about what you want, at a time when it isn’t an emergency situation.

We’ve been to see our lawyer to get our own estate plan updated. It reminded us that we know very little about what you’ve planned. For example, who would you want to speak for you, if you had a health emergency and the doctors needed information? Have you selected someone to handle your finances if you aren’t able to – have you prepared a durable financial power of attorney or a trust? Who is your attorney? Where should we look for copies of your estate planning documents if we needed them?

We’ve been to see our financial advisor for a “tune up.” It’s been a while since we took a hard look at our investments and our plans for retirement. Do you still have the same financial advisor you have been using for years? Are you happy with him or her? Do you have questions about how your money is invested?

We are so thankful that Step-Mom has come into your life. You were so sad when Mom died and it’s good to see you happy again. We want to respect the arrangements that you and Step-Mom have made, but we’re not certain what you are expecting from us, and what you have agreed with Step-Mom. If there were a medical emergency, who would speak for you? Step-Mom or one of us? Do you and Step-Mom have an agreement as to how you handle household expenses? Did you prepare a prenuptial agreement before you got married? Do the two of you have a trust? Do you have joint accounts, or do you keep your money separate?

What can we do to help you stay in your home as long as possible, and to be comfortable, safe — and happy — there?

Management of Risk in Guardianship and Powers of Attorney


Imagine: you have just been named as guardian for your aging father. You are responsible for his medical care and decisions, his comfort and his placement. You were appointed, in part, because of your concern about his safety at home — you are thinking perhaps he needs to be moved to a safer location. Your job is to eliminate — or at least dramatically reduce — the risk that he might fall in his home, that he might wander, that he might not take his medications. Right?

Not exactly.

If you were grappling with this common-place scenario several decades ago, the answer might have been clear. Legal scholars and advisers generally agreed that the primary standard governing guardians should be to protect the “best interests” of their wards. That usually meant protection from risk first, and addressing emotional and psychic needs after physical protection could be afforded.

Let’s spin the hypothetical back in time a few years. You are talking with your still-capable father about his wishes. Presciently, you ask him this question: “So, Dad, if you were at risk of falling here in your home and the only way to be sure you were safe would be to move into a nursing home or assisted living facility, would you want to go?” What do you suppose he would have said?

He probably would have asked for more information. How much risk? How serious of an injury? What might the facility look like? What other limitations might he have to endure?

We manage risk in our daily lives all the time. We make decisions from brushing our teeth to crossing the street outside a crosswalk to skydiving or motorcycle riding — and we weigh the likelihood of injury from each action constantly and almost unconsciously. When put in charge of someone else’s care, however, it human nature to try to eliminate risk altogether. That is not the way your father managed his life before you were appointed as his guardian, and it is not the way you should make decisions for him now.

Over the last several decades, legal writers have developed a concept of “substituted judgment” to guide decision-making by guardians. The doctrine is misleadingly named — though it may sound like you, as guardian, are to substitute your judgment for your father’s, it means exactly the opposite. When making decisions for your father, you should start with a good-faith attempt to figure out what your father would want and substitute that decision for the one you would otherwise make on his behalf.

Does that mean you can never place your father in a more-controlled facility? Of course not. But it does mean that you need to make an open-eyed analysis of his likely wishes, and try to emulate his approach to the decision if he were making it for himself. Are there less-restrictive ways to reduce the risk to a suitable level (but not to zero)? What other negative effects might flow from the proposed decision? What would your father do?

Is this principle universally applied? Perhaps not, but it is clearly the law in Arizona and likely the rule in most other U.S. states. It is definitely the modern trend in legal thinking.

Does this concept only apply to guardianships? No — it applies to health care powers of attorney, financial powers of attorney, conservatorships (of the estate), and trust administration. In fact, it applies to even informal, unsanctioned decision-making, like when you consent to medical treatment as next of kin.

Do these rules apply only to big decisions? No, they apply to even (perhaps especially) the small decisions — visiting schedules, travel, caretaker changes and everything else.

Is it important that our hypothetical talks about your father? What about your mother? Your brother, your daughter, or anyone else? The same thinking applies to any substitute decision-maker for an adult — though it is obviously much, much harder to apply in the case of a person who never had the opportunity to develop a risk profile of their own. In other words, decision-making for your son who was born with a profound disability does not require you to try to figure out what he would have decided if he had been competent for at least a brief period after his eighteenth birthday — though it wouldn’t hurt to try to think through what a similarly-situated person might reasonably decide.

Does this mean you have to live with the real possibility of a disastrous outcome? No, it doesn’t mean that you must engage in risky behavior. It only means that you must realistically weigh the possibility of a bad result in protecting your father. Might he slip away from the care home, get lost in the desert and have a terrible outcome? Yes — but it’s not too likely, and probably doesn’t justify locking him into his room at the facility.

In other words, you might try applying a special variant of the “golden rule.” What decision would you want him to make for you, if the roles were reversed? Might he have come to the same conclusion that you are now reaching?

Good luck handling your job as substitute decision-maker. It can be emotionally draining, and physically tiring. You will find it much more satisfying, we predict, if you will think about management, rather than elimination, of risk.

When You Need to Talk With a Lawyer


So often we field questions (on this website and in our practice) about whether people need to consult a lawyer. Unsurprisingly, perhaps, there is a terrific resistance to seeking legal advice. We lawyers don’t always help — our fees can be substantial, and unpredictable. We speak a language that sounds vaguely familiar but seems foreign to most people, and we often fail to translate — or even to recognize that our clients may not speak that language.

Too often lawyers treat the question dismissively. “Would you perform brain surgery on yourself?” we often ask. “Then why would you try to handle your own legal matter?”

That’s an unfair characterization. Legal help is seldom much like brain surgery. There are, of course, two big differences: brain surgery pretty much requires a patient who has been anesthetized, and it involves technical skills that are also unknown to most people, but also highly dangerous.

You can, in fact, handle most of your legal issues yourself. You are likely to do fairly well if you do, provided that you do plenty of research and have a basic understanding of the law before you start.

We don’t think most people should try to take care of their own legal matters, of course, and we’re not advocating it here. We just don’t want to terrorize you into hiring us. Instead, we want to convince you that legal representation is an expense worth incurring.

A better comparison might be with auto mechanics, or even plumbers. Can you change your own oil, or fix a leaky faucet? Of course you can. You will likely do just fine with either task. Similarly, you can probably find a health care power of attorney form online, fill it out and get it signed and witnessed. But there are some tasks — with your auto, with your plumbing, and with your legal affairs — better left to professionals.

So when do you need a lawyer? Of course it depends on your comfort level and time availability. I know how to change my car’s oil (it’s actually an electric car, but that’s a different story) but I choose not to do it. Why? Because I’d rather have it done professionally, and spend the extra time with my grandchildren, or finishing up the work I get paid for, or just raise a glass of wine instead. You might feel the same way about legal jobs — or you might not.

Before we leave the metaphor, let us make another observation: sometimes people who undertake their own auto maintenance (or plumbing, or legal work) mess it up. When that happens, the cost of fixing the problem may be well in excess of what it would have cost to turn the problem over to the professionals in the first place.

Some people take great pleasure in mastering disparate tasks for themselves. Others prefer to delegate when it makes good sense. When does it make sense in the legal world?

Complicated legal issues

Some things are harder to handle on your own, of course. You can figure out how to create a health care power of attorney, but are you as comfortable about your ability to create a living trust? Are you even sure you know whether you need a trust? How about funding of the trust? These issues are more complex than most simple documents.

High stakes

Your estate might be modest. Perhaps you own your house and a single bank account. Do you plan on leaving everything to your spouse, or to your only child? It’s hard to see how you will go very wrong by preparing your own will (though of course we have seen people who manage to do that). But if your estate is larger, or your family situation more complicated, you might benefit from getting legal advice.

Unusual legal problems

Do you need a guardianship or conservatorship for a family member who has become incapacitated? That’s a little out of the ordinary, and you will have a harder time finding help online or among your non-lawyer friends. Talk with a lawyer. Incidentally, the first thing the lawyer will probably do will be to explore alternatives to save you expense and legal complications. But that’s a point to be made later.

Why not hire a lawyer?

Most people are concerned about the likely cost of legal advice. Start your interview with a new lawyer by discussing fees. Will fees be flat or fixed? Or will they be hourly? If the latter, you have a harder time predicting the total fees (though they may ultimately be lower than flat fees). Ask the lawyer to honestly assess the likely total cost. Explore the possibility of setting a maximum fee, or terminating the representation if costs begin to escalate.

Interview more than one lawyer, but do it quickly. Make your first lawyer appointment and then immediately schedule a second (and maybe a third). Figure out which lawyer seems most responsive to your concerns, and most able to handle your legal problem. Ask friends and colleagues for their suggestions and for any experience they might have with your chosen lawyers.

Are you comfortable?

You might be talking with the best, the smartest, the most reasonably-priced lawyer in town. But if you don’t feel comfortable, the experience is not going to be positive. You should insist on getting calming assistance, and peace of mind — that’s a lawyer’s stock in trade.

[Next week: we’ll tackle which kinds of legal problems we most often see people foolishly trying to handle on their own.]

The Myth of the Simple Will

JUNE 15, 2015 VOLUME 22 NUMBER 22

“I don’t want anything complicated,” said our new client. “I just want a simple will.”

For almost four decades, we’ve been waiting for the client who wants a complicated will. We’re still waiting.

We hear the “I only want a simple will” request often. What clients really mean, of course, is “I want a cheap will.” That is, they don’t want to pay a lot for the legal advice or preparation of elaborate documents.

Our favorite variation is the client who wants a simple will, then tells us their assets are straightforward and their family situation ordinary. You know — the half-interest in a summer cabin in another state, the oil and gas interests in two other states and the closely-held family corporation that is worth somewhere between $1,000 and $10,000,000. And family situation? You know — one child has a developmental disability, another a drinking problem and the third is married to a spendthrift. But we’re just going to disinherit one, split things between the other two and trust them to work everything out.

We send a questionnaire to our prospective estate planning clients, so that we can figure out at least some of the possible issues during our first meeting — which is much more productive if we have the information at hand. Clients sometimes show up without having filled out the questionnaire, since they aren’t sure they want to hire us (hah! who wouldn’t want to hire us?) and they don’t want to go through the trouble of collecting information. More dangerous, though, are the clients who intentionally leave some of their assets off the questionnaire — in a misguided attempt, we suspect, to minimize the cost of their estate planning. That’s a little like not mentioning to the dentist that you have a persistent and painful temperature sensitivity on one tooth, hoping that it won’t need any expensive work.

Why do we even care about what assets you own? Isn’t it because we can charge you more if we know how wealthy you are?


We need to know about your assets to figure out whether you have an estate tax issue. Are you pretty sure you aren’t worth the $5 million that is required before federal estate tax concerns? OK — but what about state estate taxes? Though Arizona doesn’t have one, the state where you have that summer cabin might impose one. And have you added in the face value of your life insurance policies? Also the trust your grandfather left for you, which you don’t think of as “yours”? Also the possible inheritance from your parents? Those questions are all on the questionnaire, so that we can discuss them with you.

One of the principal questions we are going to talk about with you is whether you should have a living trust. Don’t worry — we’re not going to order you to do anything. But we do want to be able to give you a realistic estimate of the cost of probating your estate, and what you might reasonably do to avoid or minimize that cost. Without good information, we can’t give you either estimate.

There are real costs associated with choosing a “simple” will. We want to be able to estimate those for you, so that you can make informed decisions. By the end of our initial conversation, we will almost certainly be able to give you a flat-fee estimate of the cost of preparing your estate plan, with at least a couple variations for you to consider. Then you can decide how much simplicity you can afford.

How often do our clients end up with what might be called a simple will? If we get to define “simple,” our estimate is about half the time — or perhaps slightly less often than that. But even clients with those simple wills also have financial powers of attorney, health care powers of attorney (with living will provisions) and an instruction letter; the entire product of our representation will almost always amount to at least a dozen pages of lawyer language. We’ll also provide a translation/guide to the documents, and we are very interested in helping you to understand the options, your choices and the documents themselves; we don’t charge more for answering questions, and we like to get the opportunity.

A word about flat fees: almost all of our estate planning is done on a “flat-fee” basis. We will quote you a fee in our initial consultation, and that’s what we will charge. Do you need four drafts and extensive revisions? No additional cost. Do you love the first draft, and need no changes? Great — we got it right. But we don’t reduce our fee for doing a good job on the first pass, either. We think that arrangement makes it easy and comfortable for both of us. You get as many appointments, revisions and discussions as you need. We get the comfort of knowing that we heard all your concerns and questions, and that we’ve had an opportunity to address everything.

Even a short, inexpensive will is not simple. It is a profound document, and it isn’t even possible to figure out what it ought to say until we’ve talked through some of the issues.

Oh, and whether your estate plan is simple or complex, inexpensive or less inexpensive, it needs to be reviewed and (probably) revised every five years or so. But that’s a different concern we need to grapple with.

The Patient Self Determination Act and Trends in Advance Directives

MAY 4, 2015 VOLUME 22 NUMBER 17

Last month the U.S. Government Accountability Office released a short report on the use of advance directives in hospitals, nursing homes and other health care facilities. The report, requested by members of the Senate Committee on Commerce, Science, and Transportation, addressed the experience with health care powers of attorney, living wills and other advance directives. It makes interesting reading — or at least it is interesting to policy wonks concerned about individual autonomy and self-determination.

To review: the federal Patient Self Determination Act was adopted in 1990. It requires each state to summarize its state laws on advance directives (and to make that summary publicly available). It also requires hospitals, nursing homes, hospices, home health agencies, health maintenance organizations, and Medicare Advantage providers to inform patients about advance directives and to ask if they understand the concepts. It does not explicitly require health care providers to either ask for advance directives or to require any patients to complete them (in fact, the law prohibits any provider from requiring advance directives), but the thinking when the law was passed was that advance directives would become much more common.

Although the federal law does not require it, many states responded by not only summarizing their laws but also providing simple forms for patients to complete. And, though the law does not require this step either, many health care providers responded by offering those simplified forms to patients on admission or periodic review.

How well has the federal law worked in its quarter-century of existence? The study doesn’t really answer that question, though it does give some data points to assess changes in the medical community and care standards. At the time of adoption of the Patient Self Determination Act, activists estimated that perhaps 20% of patients had executed an advance directive. The study finds that almost half of adults over age 40 have now signed a living will or health care power of attorney. That suggests that something more than twice as many patients have done at least some health care planning — though it is unclear whether that is the result of the federal law or changing public knowledge and preferences (or both things).

Perhaps more interestingly, the study found wide disparities by type of care facility, medical condition, age, race, income level, and education level. Even gender made a significant difference, with women signing advance directives about 5% more frequently than men.

Interestingly, though, only a handful of the demographic categories reviewed in the GAO report had more than 50% compliance. Nursing home residents had signed advance directives about 55% of the time (up 10% from the previous decade). 60-year-olds had perhaps the most vigorous increase in signature rates, moving from just under half having signed a decade ago to almost three out of four today.

Interested in some of the other categories? You can read the report yourself, as it is available online. But here are some of the more interesting items we extracted from its analysis:

  • Unsurprisingly, people with chronic illness are about 10% more likely to have signed an advance directive. We say “unsurprisingly,” but perhaps it is surprising that the gap is not even wider, since only about one-third of those with chronic illness have signed.
  • People over age 65 are about twice as likely to have signed advance directives as their younger relatives. Adults under age 35 weigh in at only about 10%.
  • “White” Americans are much more likely to have signed advance directives than are African-Americans, Latinos or other races or ethnic groups. (Why quotation marks around “white”? Well, wouldn’t “pink” be more accurate?)
  • There is a clear relationship between income (each $25,000 increase in annual income seems to correspond with a 3-5% increase in signatures) and education (each degree increases the signature rate by at least 5%).

What does this information suggest to us about the use of advance directives? We have a number of ideas — occasioned more by our real-world experience than empirical evidence:

  1. You could sign an advance directive, right now. If you live in Arizona, there are plenty of resources to make it easy. Want to find Arizona forms? The Arizona Attorney General’s office has had perfectly acceptable forms online for several decades. Over time the detail, and the explanation, has grown the file to more than 20 pages — but don’t be intimidated. Actually filling out and signing the forms is pretty straightforward, and you could complete it today. Based on the statistics in the GAO report, there’s about a 50% likelihood that you’ll increase the percentage of coverage (that is, there’s about an even chance you haven’t done this yet).
  2. Do you already have an advance directive? No? Are you sure? We’re surprised how often long-time clients come back to see us to update their estate plans, and, “oh, by the way, I need to sign one of those health care powers of attorney this time.” Clients are often surprised that they’ve had perfectly good advance directives for years. If you’ve met with a lawyer any time in the past thirty years, you probably have gotten advance directives with your other estate planning documents.
  3. Sometimes people vaguely recall signing a health care power of attorney or a living will, but can’t think of where the documents are now. Wouldn’t it be nice if there was an easy way to keep these documents available online, and maybe just carry a wallet card with the information (for emergencies)? Good news! You can do exactly that — at least if you live in Arizona. We are one of about a dozen states operating a state registry for advance directives; it’s easy, free and helps keep track of your documents.


Health Care Directives — Advice for Snowbirds and Travelers

APRIL 20, 2015 VOLUME 22 NUMBER 15

Arizona weather is beautiful, especially this time of year. We do have our weather challenges — for most of the state, that means the summer months — but there is no doubt that Arizona is attractive to visitors from more northern climes during the fall, winter and spring.

Many of our “snowbird” visitors have taken care of their estate planning at home, before they get here. They might have signed a will, a trust, a durable financial power of attorney, and a health care power of attorney. Let us focus, for a moment, on that last document — the health care power of attorney.

If a resident of another state has signed a health care power of attorney and a living will in their home state, but they spend three months every winter in Arizona, should they sign a second document to govern their care while they are in Arizona? If so, what if they are only in Arizona for two weeks?

We’re not like those television shows, with driving music and a scary-sounding narration. We’ll give you the answer now, and explain it for a few moments. Generally speaking, we don’t think an occasional visitor — even one who stays for weeks or months and returns every year — really needs to sign separate Arizona documents. There might be exceptions, though, depending on some individual situations. We’re happy to explain what we mean — plus, this gives us a chance to write about “advance directives” generally.

If you have signed any documents about your health care decision-making — whether a “health care power of attorney,” a “living will,” a “health care proxy declaration,” or some other similar-sounding document, you have signed an advance directive. The latter term is the catch-all description for all of the former documents, regardless of local laws and terminology. Advance directives are just any directive about your health care that you make in advance.

(A pet peeve: an advance directive may be very clever and innovative — that is, advanced — but then it would be called an “advanced advance directive.” In other words, your health care documents are not “advanced directives,” but “advance directives.” Thanks — we feel better getting that off our chests.)

But is your Minnesota (or New York, or Iowa) health care power of attorney — whatever it is called in the state where it was written — valid in Arizona? Short answer: yes. Arizona law says that a health care directive from another state is valid in Arizona “if it was valid in the place where and at the time when it was adopted” (so long as it doesn’t violate Arizona criminal law).

But wait — we’re not done. There are still a couple questions to consider:

  1. Did you name your daughter back in Wisconsin (where you live nine months of the year) as your health care agent? If so, do you think it might make sense to make your son in Arizona your agent while you’re here? It might not be a big deal, and it might even be a good idea to make them co-agents all of the time, so you don’t have to worry about where you are when you take ill. But the logic behind your original choice of agent might be different during your extended stay.
  2. Do you know whether Arizona’s law is more generous than your home state’s law? Many states still restrict living wills, for instance, to “terminal conditions.” Arizona does not have that limitation. You might want to be governed by Arizona’s more generous statutes when you can — and your lawyer back home might even tell you that she likes using something like Arizona’s language even though your state doesn’t expressly approve of it.
  3. Do you have to use a particular form in your home state? A handful of states make you use something in substantially the state statute’s language, and that language tends to be limiting. Arizona doesn’t require that, and so your health care power of attorney can be more tailored to your individual wishes. Feel strongly about particular medical procedures, or about organ donation, or even about cremation? Arizona lets you put all of that in your health care power of attorney, and you might like to take advantage of that approach while you’re here.
  4. But wait — it’s not all sweetness and light. If you decide to sign a new health care power of attorney and living will while you’re in Arizona, you might have effectively revoked your home-state documents. Better make sure you don’t have to visit the lawyer twice every year — once when you come to Arizona for three months and once when you return home.
  5. Are you sure you’re not an Arizona resident? Even if you are, your out-of-state health care directives are still valid, but as you creep up on 50/50 time spent in two states, you might want to get some advice about which one you really live in.
  6. There’s something to be said for using a form that is familiar to the local medical community, just to save time and reduce the possibilities for misunderstandings. That’s probably not a big deal, but it does argue for using the local forms by default. Truth be told, though, we don’t use the Arizona statutory form for health care directives at all — we think we can better capture clients’ wishes with a more eloquent and less generic document.

You can get Arizona’s generic health care power of attorney, mental health care power of attorney, living will and related forms easily, and free, online. The Arizona Attorney General’s office keeps a collection of forms and instructions, and we direct people to it all the time. Arizona also has a really neat system for keeping your health care directives online, too — and then you can just carry a wallet card with login information for anyone who needs to download a copy.

New Thanksgiving Tradition to Consider: The Conversation


You’ve signed your health care power of attorney and your living will (maybe they were in the same document). You’ve given a copy to your doctor  and of course your lawyer kept a copy. Did you think you were done? Because you’re not.

Now it’s time to take care of the most important part of this process. Signing advance health care directives is important (you have gotten that part done, right? What??!! You haven’t? Get to it!). But perhaps more important than the documents is The Conversation.

You need to discuss your end-of-life health care wishes with family members. You need to include the person named as your health care agent. You also need to include the family members not chosen to make the decision. You do not want anyone arguing that “mom can’t possibly have meant to sign that” or “someone talked dad into signing that power of attorney when he didn’t really know what it meant.”

Do you want your wishes carried out? The surest way to accomplish that is to actually tell everyone in your family what those wishes are. Tell them where the documents are, and share copies. Answer their questions. Make sure they know that you know what you’ve signed, and what you want.

That’s the premise behind The Conversation Project, a non-profit organization founded by columnist Ellen Goodman. According to the Project, 60% of poll respondents say that it’s important to make sure they don’t burden their families with tough decisions at the end of life. Still, 56% say they have not talked with their families about their wishes. In our experience, we think that latter figure is inflated; people tell us they have talked with family members, but on closer questioning they usually have not.

When do you have The Conversation? We’re promoting (only half tongue-in-cheek) Thanksgiving Day as the perfect opportunity. The whole family has gathered together, the turkey is taking longer to cook than was planned — it all works to create the perfect opportunity. OK — we know you’re not likely to bring it up this Thanksgiving, but what about the rest of the family weekend?

Need help getting started? The Conversation Project has a conversation “starter kit” to do just that. It gives you some ideas about what to discuss and how to bring it up. Get copies of your advance directives together for The Conversation and just get going.

We hear you say: “my family knows what I want.” No, actually, they don’t. And some may “know” you want something different from what other family members know. How would they know if you don’t tell them? Mind reading? Osmosis? Please don’t assume they do just because they know you.

So this Thanksgiving, try The Conversation (not the Francis Ford Coppola movie starring Gene Hackman, though we also like that one). Not ready to do it that soon? OK, but schedule it, and mention it to your family, and get ready for it. Don’t just shelve The Conversation, thinking you’ll get back to it later.

In the meantime, please, have a healthy, productive and happy Thanksgiving holiday.

Which is Better: Guardianship or Power of Attorney?


Here’s a question we get asked a lot: “which is better for me to get for my mother — a guardianship or a power of attorney?” Sometimes the questioner is checking on the difference between a conservatorship and a power of attorney or (less commonly) a guardianship and a conservatorship. But the question almost always has the word “better” embedded somewhere.

The question itself is misleading, and our answer almost never satisfies. The problem is simple: if your aging parent needs someone to make decisions (medical, placement, financial or other decisions) for him or her, you almost never have a choice about whether to pursue getting a signed document (like a power of attorney) or a court order (like a guardianship or conservatorship). Why not? Because if your parent is able to sign a power of attorney, he or she is probably not a candidate for a guardianship or conservatorship. Conversely, if you could get a guardianship or conservatorship order, your parent probably can’t sign a power of attorney.

A word about language, and the peculiarities of Arizona law: in Arizona (and in some but by no means all other states) a “guardianship” is a court proceeding in which one person is given decision-making authority over another person’s medical care, placement and personal decisions. A “conservatorship” is a similar court proceeding, but with the end result that one person is given authority over another person’s finances. And Arizona does not have a procedure (as some other states do) for a “voluntary” conservatorship, which would allow the court to appoint a conservator even though the person in question is fully competent but willing to allow appointment of a conservator.

In order to have the court appoint a guardian or a conservator in Arizona, you would need to show that your parent (or other family member, or friend for whom you are ready and appropriate to act) is unable to make and communicate responsible decisions. That, actually, is the magic language for a guardianship; conservatorship requires you to be able to show that your parent, family member or friend is unable to provide proper management of his or her assets.

A power of attorney, on the other hand, does not involve courts at all. Signing a power of attorney is a voluntary act undertaken by a competent individual who understands the purpose and effect of his or her signature. As you can see, that is likely not possible for most people for whom a guardian and/or conservator could be appointed.

So the question is usually not which approach would be “better” — it is which approach is possible. If the individual is not able to sign a power of attorney, we usually add our own question to the mix: is getting a guardian and/or conservator appointed the best way to handle the problems that have arisen — is it even necessary to pursue guardianship or conservatorship?

Now pose the question differently. You are a fully competent adult, thinking about your future. You are worried about having someone available and able to take over your personal (health care) and financial decisions if you should be come unable to do so yourself. Is it better for you to sign a power of attorney, or should you simply rely on the legal system to establish a guardianship and/or conservatorship when the time comes for you?

The answer to THAT question is easy, at least in the vast majority of cases. The cost, difficulty, and invasion of your personal dignity involved in a guardianship/conservatorship almost always makes it better for you to sign a power of attorney now, while you can make your own choice. Who should NOT sign a power of attorney? Really only people who have no one trustworthy enough to take responsibility (and there are people in that unfortunate situation — to many people, in our experience) should make a conscious decision to NOT sign a power of attorney.

Notice that we have not distinguished here between (a) health care powers of attorney and (b) financial (or “general”) powers of attorney. That’s because the same values and decisions apply to both. But, in Arizona, at least, there is one important difference between the two levels of urgency: your next of kin (and some others, if you do not have close family members) might have the authority to make health care and even placement decisions for you even though you have not signed a power of attorney (and no court proceedings have been initiated). Family members — even spouses — do NOT have any authority to handle your finances without a power of attorney, however.

Which is better? If you are in a position to plan for yourself, it is almost always a good idea to choose an agent (you can choose different financial and health care agents, if you’d like) and sign powers of attorney. Do it now — don’t wait until you actually “need” the documents, because that will almost certainly be too late. Don’t rely on your belief that everyone knows what you want — that carries no weight in the legal system, unless it has been reduced to writing.

If you’re facing the problem from a child’s perspective, we’re sorry to say that it’s almost never relevant to tell you which approach is “better.” Usually it is a question of which is available. We can help, but it is likely to be more expensive and difficult if your parent (or spouse, or even child) didn’t get around to signing a power of attorney.

How to Make Health Care Decisions for Someone Else

JULY 28, 2014 VOLUME 21 NUMBER 27

Maybe you’ve been named guardian (of the person) for a family member, colleague, or friend. Maybe you’ve been listed in a health care power of attorney. Maybe you’re a family member with authority to make health care decisions (Arizona, like a number of other states, permits family members or others to make most health care decisions in at least some cases). How you got there is not the point, at least not for today. Today’s question: how do you go about making decisions for someone else when you have been given the power — and responsibility — to do so?

For centuries the American common law (and its English predecessor) focused on the “best interest” of someone who was no longer able to make their own decisions. It was not until relatively recently that the concept of “substituted judgment” began to seep into legal discussions. Today the latter notion drives health care decision-making in Arizona. That is also true in most (perhaps all) of the other states in the U.S. It may also be true in other countries, but that is beyond our scope today. In Arizona, at least, it is clear: “substituted judgment” is the legal standard for health care decisions.

But what does that mean? One early description suggested that a person making decisions for someone else should try “to reach the decision that the incapacitated person would make if he or she were able to choose.” That means that the decision-maker should try to substitute the patient’s decision for his or her own, not the other way around. In other words, the guardian/agent/surrogate should first try to figure out what the patient/principal would want in the circumstances.

Let’s simplify some of the language, just to keep things from bogging down in legalisms. Let’s use “principal” for the person signing a power of attorney, or subject to a guardianship, or (however they got there) presently incapable of making decisions. The person making the decision, signing the hospital’s forms, choosing a facility, or whatever — we’ll call him or her the “surrogate”.

So now you’re the surrogate, and you’re trying to figure out what you should consider when making your decisions. Here’s a list (probably not comprehensive — look at the comments to see if anyone has suggested other good ideas) of things you might look to:

  • Did the principal sign any documents? A living will, for instance, might give some insight into the principal’s wishes. There are plenty of other documents that might be useful, though — from worksheets filled out at a seminar on advance directives to letters to family members to descriptions of other patient’s circumstances.
  • Did you have any conversations with your principal? Maybe you talked about other patients in the news, and how your principal felt about their stories. Be careful here — we remember one client who adamantly said she didn’t want to “go through what Terri Schiavo did.” It wasn’t until we followed up with the client that we figured out that she meant that she thought it was terrible that the legal system allowed Ms. Schiavo to die. We had assumed that she meant she wouldn’t have wanted to be kept alive, but that was the exact opposite of her meaning.
  • Did anyone else have conversations with your principal? Ask family, friends, co-workers and others who might have discussed health care issues with the principal while they were still capable of forming a decision.
  • Ask your principal. Is he or she able to talk at all? Then ask for direction. That doesn’t mean you have to follow whatever a now-demented patient says he or she wants — the principal might simply respond affirmatively to almost every question, making the answer depend on how you ask. But just because you’ve been given responsibility for the decision it does not follow that your principal’s opinion is no longer relevant.
  • Consider your principal’s life history. Was he or she particularly religious, or irreligious? Do you know what family members would prefer (and whether your principal would be more likely to agree with or oppose the family)? Did other family members or acquaintances go through similar circumstances, and is your principal’s response helpful to you while making this decision?
  • Talk to the medical team. What seems like a major decision might not seem so significant after you’ve discussed the risks and burdens associated with a given procedure (or decision to forego a procedure).

Arizona law is clear on what happens next. If you can’t figure out what your principal would want, then you move from applying “substituted judgment” principles to determining the “best interests” of your principal. But that doesn’t necessarily mean that you have to approve treatment.

  • Weigh the “burdens” of treatment against the benefits. Is a proposed operation painful, dangerous, or uncertain? Or might it alleviate pain, make your principal more comfortable, or increase the odds of recovery?
  • Strive for consensus. You are supposed to be figuring out what your principal would want, but the input of family, friends and the medical community is worth considering in an attempt to avoid infighting, undercutting and acrimony. Your principal’s care might not be best-served by having a difficult situation made more tense.
  • As a last resort, consider submitting difficult choices to the courts for resolution. That gives everyone a chance to air their positions in a formal setting, and focuses the questions on the principal’s wishes — and care. But it is time-consuming and expensive, and should not be invoked unless there is real difficulty in making the correct decision.

It is a challenge to make health care decisions for someone else. It is also a terrific gift to the principal to accept the responsibility and discharge it carefully and well. Another day we’ll write about how you can make that job easier when you’re the principal rather than the surrogate. In the meantime, take the surrogate’s job seriously, and do your best to substitute your principal’s decisions for those you might make for yourself.


©2016 Fleming & Curti, PLC
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