Posts Tagged ‘POA’

Durable Powers of Attorney: “Springing” or “Surviving”?

For over four decades, Arizona law has permitted residents to create powers of attorney that continue to be valid even after the signer becomes incapacitated. That simple concept, once thought to be radical, has become widespread: all U.S. states now permit powers of attorney to be “durable.”

To make a power of attorney “durable” under Arizona law, it should include language that indicates the signer intends it to either:

  • Continue in effect even if the signer becomes incapacitated, OR
  • Become effective only if/when the signer becomes incapacitated.

You can read the law in question, Arizona Revised Statutes sections 14-5501 and those following, to see how durable powers of attorney work in Arizona. There is even a basic form for what the signature block might look like.

But what is the difference between the two kinds of durable powers of attorney? Lawyers often refer to them as “surviving” or “springing” powers — the former exist and are operative as soon as signed (they “survive” the later incapacity), while the latter become effective (they “spring” into existence) upon the later incapacity of the signer.

Which is better? Of course that depends on what the signer prefers, but there are some practical considerations that you might not have thought about.

Many of our clients feel uncomfortable about giving their agent(s) the power to handle financial matters immediately. While they completely trust the person they name as agent, those clients think it might be tempting fate to give authority to someone else. They don’t really expect their agent to act unless and until they are unable to take care of things themselves, and prefer to make their powers of attorney the “springing” type.

There are problems with this approach, however. Those problems can include:

  1. How to prove incapacity? How, exactly, will your agent prove that you have become incapacitated? Will it require a letter from your attending physician? Or two letters from two different physicians? Or your consent? How protective do you think you should be? Of course, one of the reasons you are signing a power of attorney is so that we won’t have to initiate legal proceedings to permit your agent to take over your finances. By making the proof of incapacity difficult, you might be reducing the value of the very document itself.
  2. Is there a doctor in the house? Perhaps you have considered the problem described above, and you’re willing to let any doctor (not necessarily your attending physician) certify your incapacity — and you are not planning on requiring a second opinion. Still, it can be quite a challenge to get any medical person to sign a letter saying you’re incapacitated. It might be that your medical care isn’t even being provided by a physician — maybe you’ll be evaluated by a nurse practitioner, or a psychologist. Can we write the document so that your chiropractor could make the decision? And have you tried to get a letter signed by any medical provider in the modern era of HIPAA?
  3. “I’ll be the first to know when I need it.” No, tragically, you won’t. In fact, you’ll probably benefit from assistance for a period of time when you are still capable of doing things yourself. The law has a quaint notion — people are fully competent until some future instant when they suddenly, and demonstrably, become incapacitated. That isn’t actually how it happens. You are much more likely to slowly decline, needing help with some large decisions (perhaps investment management, or organizing assets) long before you absolutely need help with smaller decisions (like signing checks). Consider the importance of letting your agent take over gradually, leaving you in control of as much as you can (and wish to) manage for as long as possible.
  4. Planning on leaving Arizona (even for visits)? Some states (notably Florida) don’t even permit “springing” powers of attorney. Maybe you think it unlikely that you will relocate to Florida, but we are a pretty mobile society. You might well end up in a state where the “springing” power of attorney is problematic — and possibly at a time when you are unable to sign new documents.
  5. Really? You don’t trust your agent? Giving someone a power of attorney is, literally, giving them the tools to misuse your assets. Of course they are not supposed to commingle assets, take your funds or make decisions in their own interest. Some do. You need to make your selection very, very carefully — your agent needs to be completely trustworthy. And if you trust them when you’re incapacitated (when you don’t have the mental acuity to protect yourself), why wouldn’t you trust them right now, when you are able to monitor their actions closely?

As you can probably tell, we are inclined to recommend that people sign “surviving” durable powers of attorney, rather than “springing” powers. That said, clients frequently are just uncomfortable giving immediate authority, and we will respect your decision. Don’t be surprised if we try to convince you to reconsider, though.

Incidentally, the same considerations apply when we consider health care powers of attorney — but there is a different practical reality. Since you will necessarily be present when health care procedures are undertaken, and since medical personnel are almost certainly involved, it is much easier to assess whether you are able to make your own decisions. A good agent will involve you in the decision-making process to the extent that you are able to participate. A good medical provider will do the same.

Pondering Your Power of Attorney


Do you have a power of attorney? If so, do you know how it works? Is a “springing” power of attorney the best way for you to keep authority over your health care and financial decisions until a transition is needed? Many people have powers of attorney but do not understand how they work.

The power of attorney gives authority to an individual (the “agent” or “attorney in fact”) to make financial or medical decisions for another person (the “principal”) in the event of incapacity. Although sometimes health care powers of attorney are incorporated into general durable power of attorney, most people prefer to separate the two kinds of documents. A health care power of attorney gives an agent duties to make medical-related decisions and a durable power of attorney authorizes an agent to handle financial matters. While some states may give your health care agent the power to authority an autopsy, organ donation or burial arrangements, no American jurisdiction recognizes a power of attorney after the death of the principal. If you want to refresher on the basics, you might want to look at this white paper written by Slade V. Dukes.

One of the most important things to understand about your durable or health care power of attorney is whether it is a springing power or surviving power. A springing power of attorney is not immediately effective when you, the principal, sign it. Instead, the power can only become effective and “spring” into action when a specified event occurs like your incapacity or disability. A surviving power of attorney is effective the moment you sign it and survives even if you become disabled or incapacitated.

So, is it dangerous to have a surviving power of attorney and give your agent immediate authority to act on your behalf? Does it make more sense to create a springing power of attorney that only gives your agent authority to act when you really need the help? Now that you’re digging through your desk door in a panic, trying to decipher if your powers of attorney are springing or surviving — relax. The answer is that it depends.

Although Arizona recognizes springing powers of attorney, we see a general trend away from the use of springing powers. Legal standards of capacity are different then medical standards of capacity, so not all doctor’s letters are created equal. Even with a notarized doctor’s letter, it is not uncommon for a financial institution to object that a springing power of attorney has not, well, sprung. There is at least one state, Florida, that does not recognize springing powers of attorney in any form. A general consensus among practitioners seems to be that though springing powers can be used in some circumstances, they should not be the default.

Our office drafts both springing and surviving powers of attorney for our clients. And before we draft a power of attorney, it helps to learn about our clients’ health and family relationships. Making a thoughtful decision about selection of your agent is a critical part of preparing a power of attorney that will serve you well. In some cases, where there is a history of family conflict or a client has complex business or financial arrangements, there may be good reasons to create a springing power of attorney. In other cases, springing powers of attorney can be problematic and create hurdles that may make it difficult for an agent to act when the call for help comes.

So which is the right answer for you? Here’s a quick question for you to consider: do you completely and implicitly trust the person you are naming as agent? If your answer is “yes,” then it should not cause any problem to give them immediate authority to act. If the answer is “no,” then we need to talk about your choice of agent. Think about it: if you do not trust them enough to give them immediate authority, then perhaps they are not the right agent for you.

It’s easy to be glib, however, and a lot harder to actually live your life. Sometimes there are not good choices. Sometimes people may simply not be comfortable with an immediately effective power of attorney. When we prepare your estate plan, you should talk through your concerns and preferences — the point of signing a power of attorney is to give you peace of mind, not to make you more anxious.

Durable Powers of Attorney Are Important But Dangerous

APRIL 26, 2010  VOLUME 17, NUMBER 14
A power of attorney is one of the most important, powerful and dangerous documents you will ever sign. Why is it important? Because your family has no inherent right or power to handle your finances in the event that you become incapacitated. Why is it dangerous? Because it is literally a license to steal.

Of course the agent named in your durable power of attorney is not supposed to steal from you. In fact, he or she can go to jail for doing so. But the whole point of the power of attorney is to make it easier for someone to handle your finances without court oversight, and without having to answer to banks or others. Too often agents abuse those powers of attorney.

So why is it important for you to sign a power of attorney? Because the alternative is, for most people, even more disturbing. Your family members and even your most trusted advisers are not able to handle your bank accounts, pay your bills, buy or sell property or protect against abuses by others — unless you have given them authority to do so in an appropriate document. That usually means a power of attorney.

There are alternatives, of course. You could create a living trust, name a successor trustee and transfer your assets into the trust. That may make it a little bit easier for your successor to handle your assets, but it does not provide any additional protection. You could simply add a trusted person to the title on each of your accounts — but that provides even fewer safeguards, and exposes your property to claims leveled against the now-joint owner of your assets.

Or you could simply hope never to need anyone to act on your behalf. Then when someone needs to act they will have to go through the process of securing a conservatorship over your estate (what some states call a guardianship of your estate). That provides better protection, but perhaps at a greater cost than you want to incur — and it means the court, rather than your family member or trusted adviser, having the ultimate authority.

That is why almost everyone we counsel ends up signing a durable power of attorney. That is also why it is so critical to make sure you have selected your agent carefully, warned them about the limitations on their authority, and provided them enough information so that they can act appropriately.

Want to know more about durable powers of attorney? Check out our new White Paper on durable powers, prepared by us for our friend and colleague Slade V. Dukes, Program Fellow for the Stetson University College of Law‘s Elder Consumer Protection Program. While there look at our White Papers on other topics, too, including Estate Planning, Guardianship and Long Term Care Planning.

Power of Attorney Used to Change Insurance Beneficiaries

MARCH 29, 2004 VOLUME 11, NUMBER 39

Thomas A. Smith had two daughters from his first marriage and two step-children from his second wife. In 1996, shortly after his second wife’s death, he changed the beneficiary designation on a $100,000 life insurance policy so that the four children would share the policy proceeds equally. In 1998 he apparently decided to change beneficiaries to name only his two daughters. Unfortunately, the paperwork was somehow misplaced.

Mr. Smith signed an entire collection of documents in 1998. He created a revocable living trust, with a provision that on his death all assets would be divided between his two daughters. His longtime financial planner, Bryan Behrens, was identified as successor trustee, to take over in the event that Mr. Smith became unable to handle the trust’s finances. He also signed a power of attorney naming Mr. Behrens as his agent.

At the same time that he signed the other documents, Mr. Smith signed a new beneficiary designation form for the life insurance policy. The new form directed that the policy proceeds would be paid to the trust, and thus to his daughters. According to both Mr. Smith’s attorney and Mr. Behrens, the form was mailed to the insurance company that same day.

Three years later Mr. Smith was on an out-of-state vacation when he became ill. He began to worry about the life insurance beneficiary designation, because he could not remember receiving a confirmation of the change. He asked Mr. Behrens to check on its status for him.

Mr. Behrens called the insurance company and found that the form had never been received. Rather than delay further, he simply signed a new beneficiary designation form as Mr. Smith’s agent, using the durable power of attorney. Mr. Smith died just eight days after Mr. Behrens signed the new form.

The insurance company could not decide whether to pay the life insurance benefit to Mr. Smith’s trust or to the four children directly. It filed an action called an “interpleader,” in which it submitted the policy proceeds to the court and asked the judge to decide who should receive the money.

The Nebraska Supreme Court was faced with an interesting question. Can an agent named in a durable power of attorney change beneficiaries on the principal’s life insurance policies? At least under Nebraska law, ruled the Justices, the agent had that power in this case—partly because the agent was a neutral person and received no benefit from the change himself. First Colony Life Insurance Company v. Gerdes, March 19, 2004.

In Arizona, it is not clear whether an agent under a power of attorney has the authority to change beneficiaries on an insurance policy, annuity, or similar arrangement. Nebraska’s approach is appealing, and Arizona might ultimately adopt a similar rule limiting the authority to those circumstances where the agent does not benefit from the transfer. Of course, if Mr. Smith had named one of his daughters as agent (as most people do), that might mean that the change could not be completed even though it appears that there was plenty of evidence that Mr. Smith actually wanted to make the change.

CPR Efforts May Have Violated Nursing Home Rights Law


Many of our clients have a visceral reaction to the idea that they might be “kept alive by machines” after they are no longer able to make health care decisions for themselves. That is why they sign “advance directives” like health care powers of attorney and living wills. The whole point of such documents is to convey the patient’s wishes about the type of treatment to be provided—or withheld.

Doris Lee had signed an advance directive before she was admitted to Riverview Care Center. The Louisiana woman had been very specific about what care she wanted. Her advance directive said, in part: “Do not use a respirator. Do not use dialysis. Do not use feeding tube. Do not use CPR.”

Late one night, aides at Riverview found Ms. Lee unresponsive and decided they needed help to revive her. They called 911, and emergency medical technicians responded. They did exactly what they are trained to do—they began CPR (cardiopulmonary resuscitation), administered chest compressions, placed a breathing tube and even a tube to deliver fluids. When Ms. Lee’s daughter arrived and demanded that the treatment be stopped, Ms. Lee was allowed to die without further intervention.

Ms. Lee’s daughters sued the nursing home for violating the instructions contained in Ms. Lee’s advance directives. The nursing home sought dismissal of the lawsuit, arguing that the question first had to be submitted to a medical review panel by state law.

The Louisiana Court of Appeals disagreed and ordered that the case proceed to trial. Ms. Lee’s daughters were not claiming medical malpractice, ruled the Court, but breach of contract and a violation of the Nursing Home Residents Bill of Rights. Terry v. Red River Center Corporation, December 10, 2003.

The significance of Ms. Lee’s case is subtle, but important. If her daughters’ claim was really a malpractice action, it would be judged by comparing the nursing home’s behavior to the prevailing standard of care among similar facilities. It would also be subject to special state procedural rules (similar to those adopted in Arizona) designed to make it harder for patients to successfully sue for malpractice.

If, however, the claim is based on contract principles or the rights contained in the Nursing Home Residents Bill of Rights, the questions become much simpler. Did the facility have a duty to follow Ms. Lee’s instructions? Did they know what those instructions were? And, finally, did they fail to honor her advance directives? Those are the questions to be posed at trial.

Probate Court’s Appointment of Agent as Guardian Reversed


When Jessie Simmons signed powers of attorney giving her son Donald authority to handle her personal and financial affairs, she probably thought she was doing the right thing. After all, a power of attorney makes it easier for family members to take care of what needs to be done. It also avoids the expense and delay associated with court proceedings. That is why durable powers of attorney are so popular today. They don’t always work to avoid court involvement, however.

Another son, Jack, filed a petition with the Ohio probate courts seeking appointment as his mother’s guardian. Donald objected, arguing that his power of attorney was completely sufficient to handle her business, and that her desire to avoid the court process should be respected. He also insisted that the actual administration of Ms. Simmons’ affairs should be kept private, and that he should not have to provide information to his brother (and their sister, who supported Jack).

The problem with that, according to Jack, was that Donald was mishandling their mother’s money. He owed money to Mrs. Simmons, and was not repaying the loan—and he should have known that was improper, since Donald was a practicing attorney. He also refused to give either of his siblings any information about their mother, claiming attorney-client privilege.

After hearing this evidence, the probate judge decided to appoint Donald as his mother’s guardian. Although there were questions about his handling of her finances, the judge reasoned that at least he would be responsible to account to the court, and other family members could find out what was going on. At the same time, Mrs. Simmons’ wishes about which family member should act would be respected.

Thus, Donald Simmons suddenly found himself appointed to a position that he did not believe to be necessary at all. Jack Simmons, for his part, found that the very person whose actions he had challenged was given authority over Ms. Simmons by the court itself. Jack appealed the decision.

The Ohio Court of Appeals agreed with Jack that Donald should not be appointed as guardian. His behavior and testimony indicated that he had been less than forthright about his handling of Ms. Simmons’ affairs before the court proceeding was initiated, and the judges reasoned that he could not be expected to cooperate any more fully as guardian. He had never asked to be named as guardian, and the appellate court ordered that he should not be appointed. Guardianship of Simmons, October 10, 2003.

Arizona Adopts New Uniform Trust Code Effective Next Year


[NOTE: After this article was published and circulated, the Arizona legislature delayed the effective date of the Uniform Trust Code in Arizona for two years and then repealed the UTC altogether, and then re-adopted it in a significantly modified form. Readers need to check the current status of the UTC in Arizona rather than relying on this synopsis, prepared before the legislative revisions of the Code.]

After several years of work by some of the leading trust law experts across the country, last year the National Conference of Commissioners on Uniform State Laws published a proposed new law for consideration by all the states. The Uniform Trust Code (the UTC) was promptly introduced in ten states and the District of Columbia. Arizona became the fifth state to adopt the UTC earlier this year.

Many of the UTC’s provisions simply restate existing trust rules, but a few new ideas have now become law in Arizona. Among the changes facing Arizonans who either create or administer trusts:

Notice Requirements


Trust law has long required that beneficiaries be given notice of the existence of the trust and periodic accountings. What’s new about the UTC is the specificity of that requirement. Before March 1, 2004, every Arizona trustee is required to give notice of the existence of the trust to any “qualified beneficiary.” Accountings must be given to the same “qualified beneficiaries” every year. This requirement can not be written out of the trust document, so notice and accountings will be mandatory in every case.

Notices and accountings will usually have to go to anyone presently permitted to receive trust benefits, plus anyone who might receive benefits on the death of someone in the first category of beneficiaries. Among those clearly affected by the change will be surviving spouses who receive income from so-called “bypass” trusts and their successors.

Powers of Attorney


The UTC also clarifies the authority of an agent under a durable power of attorney to revoke or amend a trust. The agent will have such power only if the written power of attorney contains specific provisions and the trust itself does not prohibit an agent from acting.

Spendthrift Provisions


A trust which prevents either a trustee or a beneficiary from conveying the beneficiary’s right to future trust distributions may be described as a “spendthrift” trust. The UTC clarifies that creditors of the beneficiary of a spendthrift trust can not reach trust assets. At the same time, the UTC codifies a number of exceptions to that rule, including claims against the trust’s settlor, claims for child support and alimony, and claims by some governmental entities.



Arizona lawmakers took out the UTC provision on the level of capacity required to establish a trust. In future years it will probably be set at “testamentary” rather than the higher “contractual” capacity level.

Effective Date

The new Uniform Trust Code becomes effective in Arizona on January 1, 2004. It will profoundly affect the administration of trusts in the state, and it will also provide several challenges for those who are considering creating a trust in the future.

State High Court Allows Gift of Home Using Power of Attorney


In addition to the danger inherent in powers of attorney (they can literally be licenses to steal) there can be another problem with the documents in practice. For at least some transactions (especially gifts) the use of a power of attorney is often viewed with suspicion, and even clear intentions can become murky.

Austin Stephens, a widower with two children, wanted to transfer his home into his daughter’s name. The evidence indicated that he understood what he was doing, that he wanted to make the gift and that he participated in the transfer. But after his death his son objected to the fact that the deed had actually been signed by Mr. Stephens’ daughter using a power of attorney, rather than by Mr. Stephens.

After Mr. Stephens’ wife died in 1988, his daughter Shirley Williams helped take care of him. His only other child, son Lawrence Stephens, moved out of town shortly after Mrs. Stephens’ death, and though he remained emotionally close to his father he was physically distant. After Lawrence Stephens moved out of town Austin Stephens signed a durable power of attorney, giving his daughter Shirley the power to handle his finances.

As Mr. Stephens’ glaucoma worsened his daughter began to take care of his affairs even more than before. Two years later, he decided he wanted to give the family home to her, and he instructed her to sign the deed for him—his advancing blindness made it too hard for him to do so himself.

After the deed was signed Mr. Stephens had several opportunities to confirm that it reflected his wish. He spoke with a neighbor and longtime friend, explaining that he had given the home to his daughter. He acknowledged the gift when someone from the County Recorder’s office called to ask if he really meant to make the transfer. Months later he visited his own brother and confirmed that he had taken the steps to “disinherit” his son.

Nonetheless, after Mr. Stephens’ death his son moved to bring the home back into his estate so that it would be divided between the two children. He argued that the fact that Shirley used her power of attorney to benefit herself was inherently suspect, and that she should be required to show that she actually had the power to make the transfer. The probate court refused to void the transfer, but the California Court of Appeals, though reluctantly, ordered the property returned.

The California Supreme Court has now ruled with Shirley in upholding Mr. Stephens’ transfer of the home. Although Shirley did not have the power to give herself the property using the power of attorney, ruled the state high court, Mr. Stephens’ repeated ratifications of her actions made the transfer valid. Estate of Stephens, July 25, 2002.

In Arizona the result likely would have been different. Arizona law is very clear about the use of powers of attorney to make a gift, and any such power must be clearly listed in the power of attorney itself. Furthermore, the power to make a gift (along with any other power that might be used to benefit someone other than the person signing the document) must be separately initialed by the person giving the power and witnesses. Unless Mr. Stephens’ power of attorney included those provisions, its use to make a gift of the home would probably have been invalid in Arizona.

Court Denies Guardianship Petition Based on Power of Attorney

JULY 29, 2002 VOLUME 10, NUMBER 4

Family members and caretakers are often confused by the difference between powers of attorney and guardianship. The difference is straightforward: powers of attorney can be signed by competent adults giving authority to someone else to act—including, but not necessarily limited, to those times when the signer may later become incapacitated. Guardianship and conservatorship, on the other hand, are court proceedings that may be initiated when a person no longer has capacity to sign documents such as a power of attorney.

A previously executed power of attorney should ordinarily avoid the need for instituting guardianship proceedings. For several reasons, avoiding court action will usually be desirable.

The high cost of guardianship and conservatorship actions makes the relatively inexpensive power of attorney look like an attractive alternative. When an individual signs a power of attorney, he or she also selects the individual who will act as agent; a guardianship proceeding leaves that choice up to the court. Once court proceedings are invoked, it will usually be necessary to file accounting and personal information with the court (and make it a public record) every year thereafter.

Despite the existence of a validly executed power of attorney, however, court proceedings sometimes are initiated. In a recent Florida case, for example, distant relatives of an elderly woman filed a guardianship petition; her husband and step-daughter already held a power of attorney. When the court denied their petition for guardianship, the relatives appealed.

The Florida Court of Appeals upheld denial of the guardianship petition. The court noted that Florida law strongly favors imposition of the least restrictive form of control over the lives of incapacitated adults, and decided that recognizing the validity of the power of attorney satisfied that requirement.

The Florida couple had been married eighteen years, their assets were modest and there was no indication that the agents under her power of attorney had misbehaved in any way. Given those facts, said the court, the guardianship petition should be dismissed, giving effect to the woman’s choice of agent and mechanism for managing her personal and financial decisions. Smith v. Lynch, July 24, 2002.

The result would probably be the same in Arizona. Though our statutes lack the strong language preferring the least restrictive alternative, courts almost universally apply the same principle. If there had been any indication of wrongdoing by the agents under the power of attorney, of course, the result likely would have been different. Court supervision, though expensive, at least gives some assurance that proper decisions will be made.

Feeding Tube Withdrawn From Patient With No Living Will

MAY 27, 2002 VOLUME 9, NUMBER 48

One way to help assure that you will not receive unwanted medical care is to sign an advance medical directive. Every U.S. state now recognizes health care powers of attorney (sometimes called health care proxies) or living wills. Nearly all states recognize both types of documents. Often, however, the decision whether to initiate or continue life-sustaining medical treatment must be made for patients who have signed no documents at all.

Most states now permit family members to make some—or even all—health care decisions for patients who have not signed advance directives. Sometimes those powers are limited; in Arizona, for instance, family members do not have the inherent power to refuse or remove feeding tubes.

When patients have not signed any kind of advance directive, however, the likelihood increases that an unhappy result will occur. Take the case of Engracia Torregosa Garcia as an example.

Ms. Garcia experienced cardiac arrest in July of last year. Although she was resuscitated she had suffered irreversible brain damage, and she fell into a chronic vegetative state. Doctors agreed that there was no hope of recovery, but Ms. Garcia could be kept alive for months or years on a feeding tube.

Because there was no prospect for improvement Ms. Garcia was transferred to hospice. Her mother, brothers and sisters immediately objected to her care in hospice, though, because the feeding tube was removed. The case ended up in court in Tennessee, where Ms. Garcia was being treated.

Nearly four months after her accident the trial court ruled that Ms. Garcia’s feeding tube could not be removed. State law permits anyone to sign an advance directive authorizing withdrawal or withholding of a feeding tube. The judge reasoned, however, that the same law prohibits removal of a feeding tube from a patient who never got around to signing any directive.

In the course of the proceedings the court had appointed an attorney to represent Ms. Garcia, and her attorney and the hospice program both appealed. The Tennessee Court of Appeals reversed the trial judge’s holding, and authorized the removal of her feeding tube. The evidence was clear, ruled the Court of Appeals, that Ms. Garcia would not have wanted to be kept alive in her current condition; the Tennessee legislature did not have the power to compel her to accept treatment just because she had not signed a particular form in advance. Juan-Torregosa v. Garcia, May 7, 2002.

The result in Ms. Garcia’s case would probably strike most people as correct. As is often the case with stories reported in Elder Law Issues, however, that result was not reached without considerable expense and delay—which could have been avoided with proper planning.

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