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.