Arizona has no prohibition on an out-of-state agent for your power of attorney. However, you might want to make your agent or trustee someone who lives in the same state as you for a number of reasons.
What is required to designate an agent?
A.R.S. § 14-5501 lists the requirements for designating an agent under a valid power of attorney. The power of attorney must contain “language that clearly indicates that the principal intends to create a power of attorney.” Also, it must clearly identify the agent. The principal must sign the power of attorney. The signing must be witnessed by someone “other than the agent, the agent’s spouse, the agent’s children or the notary.” Finally, the creation of the power of attorney must be notarized.
Durable Financial Power of Attorney
Banks often decline to accept powers of attorney for a variety of reasons. Sometimes they decide that the document is too old. Sometimes out-of-state agents cause hiccups. If your agent is out-of-state, it is likely that your agent will attempt to meet with a member of your bank’s local branch over the phone or your agent might go to their local branch of the same bank. In either instance, a bank will probably be less likely to accept a five-year old power of attorney. Further, your agent would need to leave their home state to access any safety deposit box or manage any real property.
Healthcare Power of Attorney
Healthcare decisions can be difficult, and your agent will not have all of the available information if they are not in-person. You would probably want your agent to be in-person for them to see your condition for themselves and make the best possible decision on your behalf. If your agent is out-of-state, they would not be able to make it to the hospital in an emergency situation and would have to communicate over the phone. If you lost capacity for an extended period of time, your agent might need to be out of their home state and uproot their lives for that time in order to oversee your treatment. This will be a burden on your agent and limit your ability to have the best possible choices made on your behalf.
What is required to create a trust?
A.R.S. § 14-10401 outlines the different methods for creating a trust. You can transfer property to another person as trustee during your lifetime, by will, or “other disposition taking effect” on your death. The owner of the property can prepare a declaration that the identifiable property is being held as trustee. Finally, you can exercise a power of appointment in favor of a trustee. In any case, the trust must name a trustee.
A trustee has a variety of duties including: duty to administer trust by its terms, duty of skill and care, duty to give notices, duty to furnish information and to communicate, duty to account, duty not to delegate, duty of loyalty, duty to avoid conflict of interest, duty to segregate trust property, duty of impartiality, duty to invest, duty to enforce and defend claims, and a duty of confidentiality. Being a trustee is a fair amount of work. As you could imagine, adhering to all of these duties would be even more challenging for someone who is living out-of-state.
There are a number of potential obstacles an out-of-state agent or trustee may face. But it is still important that you have someone you trust in that role. You will have to determine whether having your first choice of agent or trustee outweighs the additional challenges. If the person you are thinking of appointing as an agent or trustee lives in another state, you should