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Guardianship Not Required With Power of Attorney in Place

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Power of attorney helps avoid guardianship

We’ve written before about why you might want to avoid guardianship proceedings. They are expensive. More lawyers, judges and court-appointed officials are involved than most people would like to have in their lives. If you planned in advance, you probably would not choose a cumbersome, invasive and public legal proceeding.

How can you avoid guardianship? The most effective way is to sign an appropriate power of attorney in advance, while you’re still competent to do so. A health care power of attorney should help avoid the necessity of a court-appointed guardian to handle your personal and medical decisions. A financial power of attorney should have the same effect with regard to a court-appointed conservatorship.

To be sure, a power of attorney is not a panacea. Family disputes sometimes arise after documents are signed, and they are sometimes legitimate. Unscrupulous agents can take advantage of you using the power of attorney. Still, though, it is important to set up the mechanism to help avoid guardianship in most cases.

Last year’s Indiana case

Almost exactly a year ago, we told you about an Indiana case that discussed the use of a pre-existing power of attorney to avoid guardianship. It involved a woman we called Hazel McNabb. Her six children were quarreling about who should handle her decisions as she moved more deeply into dementia. She had signed both health care and financial powers of attorney. Those named two of her children as agents; the other children thought the two agents were making poor decisions, and failing to keep them informed.

Last year the Indiana Court of Appeals threw out the probate court’s unique and creative approach to the guardianship. The probate judge had appointed all six children as guardians for Hazel, giving each of them a separate area of control. One, for instance, was chosen as her “spiritual needs” guardian, and another as her “health care needs and hygiene” guardian.

According to the Court of Appeals, the probate judge had started from a wrong premise. Before appointing any guardian, they ruled, the judge should have decided whether there was any need at all. The valid powers of attorney might have been effective to avoid guardianship altogether.

Last year the probate court’s order was reversed, and the matter remanded for further proceedings. The probate judge was directed to first determine whether any guardian was necessary; if not, the guardianship should be dismissed.

This year’s reconsideration

After the Court of Appeals ruling, the Indiana probate judge revisited whether Hazel’s powers of attorney could avoid guardianship proceedings altogether. In a second round of hearings, the probate judge decided that his first order was just fine. His understanding of the Court of Appeals order was apparently that he had been instructed to decide who had priority for appointment as guardian. It was an interesting question, but not the one he had been ordered to consider.

The earlier Court of Appeals order had directed the probate judge to consider whether the power of attorney had been effective to avoid guardianship altogether. Based on the two named agents’ apparent inability to work together, he instead decided to review who should be appointed as guardian. After that review, he once again appointed six co-guardians and divided their duties up in the same idiosyncratic manner.

Two of the children appealed again, and the matter returned to the Court of Appeals for a second look. This month, the appellate court reviewed the probate judge’s action, and its own decision from last year. Rather than send it back for another round of consideration, the Court of Appeals simply reversed the guardianship order and directed that the proceedings be dismissed. Guardianship of Morris, July 6, 2017.

Why Hazel’s family disputes matter

Apparently, Hazel’s children do not communicate well or get along together. But more than a decade ago, she signed powers of attorney naming two of them as co-agents. That power of attorney also gave them the power to act independently of one another — so communication and cooperation would not be required except in cases of irreconcilable disputes. The other four children, though interested in their mother’s welfare, were not given a role.

The probate judge apparently decided that the family would be better served by a wider dispersion of authority. But that overlooked the point of the powers of attorney: they were signed precisely to avoid guardianship proceedings in the event that Hazel later lost capacity.

What can you do to avoid guardianship for yourself? Sign a carefully thought-out power of attorney. Choose your agent carefully. Consider not only their abilities but also their relationships with other family members. Discuss your plans and wishes with them — and with family members not chosen to act on your behalf.

Things — and people — change. The best you can do is to improve the likelihood your wishes will be carried out, as there are no guarantees. But a thoughtful conversation with a qualified attorney can help get the drafting done in a way that maximizes the chances.

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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.