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Arizona Powers of Attorney Must Meet New Requirements

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This month, two new laws governing powers of attorney became effective in Arizona. While the changes will not have much effect on existing powers of attorney, they may make new documents invalid, particularly when computerized forms (or forms prepared by lawyers who have not kept abreast of the changes) are used.

The Arizona legislature has for several years been concerned that the state’s aging population is susceptible to exploitation by unscrupulous care home operators, financial advisers, friends and family members. In each of the past several years, the legislators have considered (and frequently adopted) changes to the law governing durable powers of attorney, hoping to reign in the abuses. Unfortunately, those who rely on powers of attorney to accomplish legitimate purposes (such as the appropriate management of a now-incapacitated family member’s finances) are also affected by the changes.

The new laws make it clear that a durable power of attorney may be used only for the benefit of the person giving the power. In other words, the agent under a power of attorney is prohibited from making gifts to family members or paying for the support of adult children. If the agent ignores this rule, he will be guilty of theft.

If a person truly wishes to give the power to make such payments to an agent, she must separately initial those provisions of the power of attorney, as must the witnesses to her signature. The same provisions apply to anyone who charges a fee or commission to act as an agent; the power of attorney itself must include authority for the payments, and be separately initialed by the principal.

The other change adopted by the legislature will require all financial powers of attorney to be notarized and witnessed. The person signing the power of attorney and the witness must both declare that the principal is competent and not acting under duress. Failure to follow the language of the statute will make the power of attorney invalid.

The new requirements for execution of powers of attorney do not affect documents signed before August 1, 1998. Neither change will invalidate powers of attorney executed in other states, but the agent named in another state’s power of attorney is likely to be limited.

Should everyone who has already signed a financial power of attorney immediately sign a new document to comply with the changes in the law? Not necessarily, though the changes may be a good excuse for reviewing existing documents anyway. Over time, banks and others will come to expect the new language in powers of attorney, and it may be safer to update the documents every few years. The changes do not have any effect on existing health care powers of attorney, which are usually executed as separate documents.

One troubling effect of the new law will be that thousands of Arizonans are likely to execute invalid documents if they rely on bookstore forms, computer programs or other self-help sources for their powers of attorney. While it is unlikely that the legislature intended to increase the need to rely on lawyers for these instruments, that is the probably result of the new law, at least for the next several years (until forms providers and software manufacturers catch up with the Arizona legislature).

While a cynical observer might observe that the legislative changes were more show than substance, the new laws also include some good news for vulnerable seniors. The legislature included an appropriation of nearly $700,000 to fund an additional four adult protective services workers (statewide), operate a 24-hour adult abuse hotline program, provide after-hours shelter, emergency evaluations and caretaker services and train adult protective services workers in implementation of the new laws.

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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

Famous people's wills

Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.