Finance
Instrument: Durable Power of Attorney (DPOA)
What is it for?
The durable power of attorney (DPOA) is a written document by which an adult (the “principal”) designates another person as the principal’s agent to make financial decisions on the principal’s behalf. The agent will be able to make decisions and act with respect to the principal’s property whether or not the principal has capacity to do so.
What does it do?
The DPOA is a written instrument by which a principal designates another person as the principal’s agent for financial decisions. The agent’s decisions on the principal’s behalf have the same binding effect as if the principal had made them. Ariz. Rev. Stat. Ann. § 14-5502.
This instrument is considered “durable” because it remains in effect even if the principal lacks capacity to make those decisions on their own. The DPOA must contain specific language that the principal intends for the agent’s authority to remain in effect notwithstanding the principal’s incapacitation. Ariz. Rev. Stat. Ann. § 14-5501(A) & (B).
A DPOA does not, however, give the agent authority to make health care decisions.
How does one make it?
The principal must “have capacity” at the time of executing the DPOA. Arizona defines having capacity as being “capable of understanding in a reasonable manner the nature and effect of the act of executing and granting the power of attorney.” Ariz. Rev. Stat. Ann. § 14-5506(D)(1).
Also, a DPOA must satisfy all the following requirements:
- Contains language that clearly indicates that the principal intends to create a power of attorney and clearly identifies the agent.
- Is signed or marked by the principal or signed in the principal’s name by some other individual in the principal’s conscious presence and at the principal’s direction.
- Is witnessed by a person other than the agent, the agent’s spouse, the agent’s children or the notary public.
- Is executed and attested by its acknowledgment by the principal and by an affidavit of the witness before a notary public and evidenced by the notary public’s certificate, under official seal. Ariz. Rev. Stat. Ann. § 14-5501(D).
When does it come into effect?
The agent’s authority may come into effect either immediately or only upon the principal’s incapacitation, depending on the terms of the DPOA.
How long does it last?
The DPOA lasts until the principal’s death, unless the DPOA itself specifies otherwise.
How does one end it?
The DPOA can specify an end or it can be revoked by the principal, although Arizona’s statute does not state the means the principal should use to revoke the DPOA.
What does an example look like?
The Arizona statute does not provide a DPOA form. The Superior Court of Maricopa provides various forms for specific purposes, including both a financial DPOA and a health care POA, which are available here.
What else should one know?
Arizona’s DPOA is not based on the Uniform Power of Attorney Act.
Last updated April 2021
Education
Instrument: Delegation of Rights
What is it for?
An adult student receiving special education services may execute a delegation of right to make educational decisions. Ariz. Rev. Stat. Ann. § 15-773(B). This avoids parental rights under the Individuals with Disabilities Education Act (IDEA) transferring to the student.
What does it do?
By delegating rights, a student formally allows a parent or another adult to make educational decisions and exercise parental rights under the IDEA on his or her behalf. The delegation is designed to allow a student to maintain the parent’s role as educational decision-maker before the student turned 18 years old.
How does one make it?
Any student at or above the age of 18 and under the age of 22 receiving special education services can choose to delegate rights to another so long as the student has not been “declared legally incompetent.” Ariz. Rev. Stat. Ann. § 15-773(C). The student must “manifest[] the capacity to give” the informed consent required of a parent under the IDEA.
The student must either sign form provided at Ariz. Rev. Stat. Ann. § 15-773(D) or otherwise manifest the student’s assent to delegate IDEA rights by alternative means, such as in an audio or video format. The educational representative must also sign or assent to the delegation, and the delegation must be notarized.
When does it come into effect?
The delegation will come into effect immediately.
How long does it last?
A delegation lasts for up to one year, at which time the student must renew it. The delegation is renewable until the student reaches 22 years old or stops receiving special education services.
How does one end it?
A student may terminate the delegation at any time, although the statute does not specify a method for termination.
What does an example look like?
A sample statutory form is provided at Ariz. Rev. Stat. Ann. § 15-773(D). It can be found here.
However, this form is not required; a delegation may also be made “in writing, by audio or video means or in any other alternative format that necessitated by the pupil’s disability.” Ariz. Rev. Stat. Ann. § 15-773(E).
What else should one know?
Notwithstanding the delegation, the student retains the right to be present in the development of the student’s individualized education program and to have any of the student’s issues or concerns addressed. Ariz. Rev. Stat. Ann. § 15-773(C)(4).
Last updated April 2021
Health
Instrument: Health care power of attorney (POA)
What is it for?
The health care POA is a specific kind of health care directive that allows an adult to designate another adult to make health care decisions for them when they are unable either to make health care decisions on their own or to communicate their decisions.
What does it do?
The health care POA allows an adult (the “principal”) to designate another adult as the “agent.” The agent can make health care decisions on the principal’s behalf when the principal when the principal cannot make or communicate their own health care decisions. Because the health care POA remains in effect after the principal becomes unable to either make or communicate health care decisions, it is considered “durable.” An agent’s authority to make health care decisions on behalf of the principal is limited only by the express language of the health care POA or by court order. Ariz. Rev. Stat. Ann. § 36-3223.
The agent must make decisions in accordance with the principal’s wishes as expressed in the health care POA, if any. If the health care POA does not provide sufficient information to know what the patient would want in a particular circumstance, the agent must base decisions on the agent’s knowledge of the principal’s values. If the health care POA and the agent’s knowledge of the principal’s values do not provide sufficient basis, then the agent must make decisions based on the principal’s best interest. Ariz. Rev. Stat. Ann. § 36-3203(C).
Health care providers have a general duty to comply with health care decisions made by duly designated agents, with exceptions for when the decision violates the provider’s conscience or the provider knows the agent’s decision is inconsistent with health care directive of the principal. Ariz. Rev. Stat. Ann. §§ 36-3204(A) & 3205(C).
How does one make it?
A health care POA must be in writing and contain language that clearly indicates that the principal intends to create a health care POA. This writing must be dated and either signed or marked by the principal. (If the principal is physically unable to sign either the notary or the witness must indicate that the principal wishes to execute the health care POA.) And the writing must be either notarized or witnessed and dated. The notary or witness must attest that the principal appeared to be of sound mind and free from duress at the time of execution of the health care POA. Two witnesses are required if at least one of them is related to the principal by blood, marriage or adoption or is an heir. Ariz. Rev. Stat. Ann. § 36-3221.
When does it come into effect?
The health care POA is effective immediately; however, the agent’s authority to make decisions on behalf of the principal only comes into effect when the principal becomes unable to make or communicate their decisions. Note that Arizona’s statute does not describe how to make the determination that a principal is unable to do so.
How long does it last?
Arizona’s statute suggests that the agent’s authority remains in effect for as long as the principal is unable to do make or communicate health care decisions.
How does one end it?
The principal may end a health care POA by revoking it writing, orally notifying the agent or health care provider of the principal’s intent to end the POA, making a new health care POA, or “any other act that demonstrates a specific intent to revoke or to disqualify” the agent. Ariz. Rev. Stat. Ann. § 36-3202.
What does an example look like?
The Arizona legislature provides an example of a health care POA within the statute itself, at Ariz. Rev. Stat. Ann. § 36-3221. It can be found here.
What else should one know?
A principal may record a health care POA or any other health care directive with Arizona’s Health Care Directive Registry. Ariz. Rev. Stat. Ann. § 36-3292.
Arizona’s other health directives include prehospital medical care directives, living wills, and mental health care POAs. Ariz. Rev. Stat. Ann. §§ 36-3251, 3261, & 3281.
Last updated April 2021
General
No information available at this time.