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More On Value, Limitations Of Durable Powers of Attorney

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Three decades ago, all powers of attorney automatically expired when the principal became incompetent. Since the creation of “durable” powers of attorney, they have become ubiquitous.

Before the advent of durable powers of attorney, the only way to gain control of the affairs of an incompetent person was a court proceeding. In most states, those proceedings were called guardianship, and could be initiated with regard to the finances or personal care of the incompetent person.

Today, many states (including Arizona) use the terms “guardianship” and “conservatorship” to refer court proceedings regarding, respectively, the personal care and financial issues of incompetent persons (now usually referred to as “incapacitated” adults). Despite name changes, and at least partly because of protections granted to prospective wards, the court proceedings are too often cumbersome, expensive and invasive.

Frequently family members only become aware of the need for a durable power of attorney after a senior has become incapable of managing his or her own affairs. It is then too late to secure a power of attorney, since the signer must be competent at the time the power of attorney is executed.

Most people would prefer to have established a durable power of attorney to the expense and indignity of guardianship and conservatorship proceeding. There are a number of serious drawbacks to powers of attorney, both for the principal and for the agent. Chief among these:

  • Lack of oversight. Conservators must account annually to the court. While this may seem like a disadvantage, it does mean that the risk of loss is significantly reduced. In fact, in most jurisdictions the conservator must post a bond, so that any misdealing (or any seriously inappropriate investment losses) will ultimately be repaid to the principal. With a power of attorney, there is no one to watch over the agent’s actions, and no institution in a position to either stop abuses or seek recovery for theft. Unfortunately, theft by family members (often using durable powers of attorney) is an epidemic affecting the elderly.
  • Release of the fiduciary’s liability. In theory, the agent under a durable power of attorney could be liable to disgruntled family members until after the death of the principal. In most conservatorship proceedings, the fiduciary is released once a year from any liability for older investments or expenditures. Particularly where the senior needs protection from one litigious family member, the conservatorship may provide a valuable limitation of liability.
  • Revocability. Too often the person signing a power of attorney will become paranoid (or vulnerable to manipulation) at precisely the time the document is most needed. A family member relying on a durable power of attorney may find that it has been revoked, or that its validity has come into question, just as it becomes necessary to begin using the power. Of course, if the principal is clearly competent enough to revoke the power of attorney, it may not be possible to secure a conservatorship as an alternative.

Although there are problems with powers of attorney, they are undoubtedly less expensive and more private than court proceedings. Careful selection of one’s agent can help minimize the problems.

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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.