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Powers of Attorney Are Both Powerful And Dangerous Tools

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Durable powers of attorney are a relatively new idea in the law. Until 1974 (in Arizona), all powers of attorney automatically terminated when the person signing the power of attorney became incompetent. Two decades later, every U.S. state and territory has authorized powers of attorney which survive incompetence, and the “durable” power of attorney is a favorite planning tool for lawyers and clients.

Durable powers of attorney can be powerful tools to provide for financial management after incapacity. They can also be dangerous, and often amount to a literal license to steal. Understanding both the value and the danger requires some familiarity with the language and rules of powers of attorney.

The person signing a power of attorney is usually called the “principal.” The person given the power to act for the principal is referred to as the “agent” or “attorney-in-fact” (to distinguish the role from that of an “attorney-at-law”).

In order for a power of attorney to be durable, it must include language indicating either that it will become effective upon the principal’s disability (a so-called “springing” power of attorney, because it “springs” into existence upon incapacity) or that it exists now and will survive the subsequent incapacity of the principal (a “surviving” power of attorney). A given power of attorney may relate to financial matters, health care matters, or both; most powers of attorney drafted by lawyers are one or the other, and principals frequently sign two separate powers of attorney to deal with the two kinds of issues.

A power can grant broad authority (a “general” power) or be limited to very specific authority (a “limited” power). Typically, limited powers of attorney are granted to authorize a single transaction while not conveying any authority over other property of the principal.

Although a power of attorney may be general, there are still some things an agent may be unable to accomplish. In some cases, there is no legal authority to grant certain powers; in others, common practice may make it difficult to complete certain transactions. Among the limitations of powers of attorney:

  • Voting. An agent may not exercise the principal’s right to vote.
  • Marriage and divorce. An agent may not enter into a marriage contract for the principal, and probably can not initiate a divorce proceeding (though the latter may vary by state and by circumstance).
  • Real estate. Even when a power expressly includes authority to buy and sell real estate, title insurance companies may decline to accept the power, making it of limited use for real estate transactions.
  • Taxes. IRS rules require a special form of power of attorney. In practice, general powers of attorney may be sufficient to report and pay taxes due, but inadequate when a refund is claimed.
  • Gifts. Although a power of attorney may include the authority to make gifts (including to the agent), the general rule is that gifting authority must be specifically included. Since the agent has a general duty to preserve the principal’s estate, and to use it only for the principal’s benefit, gifts are not permitted unless clearly authorized.

One other limitation: only competent individuals can execute powers of attorney. If the principal is incapacitated, it is too late to initiate this powerful tool.

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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.