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Failure To Plan May Result In Court Naming Surrogates

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When an adult becomes incapable of handling his or her own personal and financial affairs, someone must step forward and pay bills, make medical decisions and handle a host of daily decisions. Court proceedings, agency investigations and the plans made by the adult before becoming incapacitated will all affect who makes those decisions and under what authority.

Many adults (but still a minority) take steps to select a surrogate decision-maker in advance. By executing a durable power of attorney, a competent adult can designate the person who will handle financial decisions; a durable healthcare power of attorney can make a similar designation for medical decisions. The names of either document may vary; in Arizona, at least, the title of the document is not as important as its contents.

For the majority of adults who never get around to signing documents in advance, the law provides a mechanism for designating someone to make decisions. The law on these interrelated issues tends to vary significantly by state, so it is important to seek competent legal advice in the appropriate state. Arizona’s surrogate decision-making structure is typical in many ways, but unique in others.

Arizona, like about half of the states, has a law permitting someone to make medical decisions for an incompetent patient, even if the patient never executed an advance medical directive of any kind. Arizona’s law does limit the ability of such a surrogate—he or she may not consent to the withdrawal or withholding of artificially supplied food and fluids—but for most medical decisions, the surrogacy law works very effectively.

There is no similar law, however, for financial decisions. Married couples are often surprised to learn that a spouse, for example, is not empowered to make financial decisions for his or her ill partner. There are a number of circumstances in which someone may have to approach the courts for authority to act for an incapacitated adult, including when:

Financial decisions must be made.
The health care surrogate is unavailable, or fails to act.
The person named in a power of attorney fails to act, or misbehaves in some way.
The agent in a durable power of attorney dies or becomes incapacitated, and no alternate has been named.

The court process for designation of a formal surrogate is called (in Arizona) guardianship and/or conservatorship. The two kinds of proceedings are easy to separate—a guardian has control of the incapacitated adult’s medical care and placement, and the conservator has control over finances. Both processes involve a court hearing, notice to the incapacitated person (who must be actually served with the petition for guardianship and/or conservatorship), appointment of an attorney and court investigator for the proposed ward, and continuing court oversight of the guardian or conservator’s actions for the duration of the ward’s incapacity.

Guardianship and conservatorship proceedings can be expensive, time-consuming and (for the ward, at least) humiliating. At the same time, they provide oversight and protection in the handling of funds and medical decisions.

Most people would prefer not to involve the courts in managing their personal affairs; the only effective way to avoid such a result is to execute healthcare and financial powers of attorney while still competent. By such advance planning court proceedings can usually be avoided, though a guardian or conservator may still be necessary if the agent fails to act properly.

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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.