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Valid Power of Attorney May Avoid Guardianship

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Valid power of attorney

Does every incapacitated person qualify to have a guardian appointed? Not necessarily. A valid power of attorney may finesse the need for appointment of a guardian of the person OR a conservator of the estate. Let’s look at a recent case from the courts here in Tucson.

George and Suzanne get married

Actually, the marriage of George and Suzanne was already old news. They had been together for more than thirty-five years. In 2016, Suzanne signed a durable financial power of attorney naming George as her agent. At the same time, she signed a health care power of attorney — it also named George to make personal decisions for her.

Within a couple years, Suzanne’s condition was deteriorating. She lived at home with George until early 2018, but she was not doing well. George took her to the emergency room and urgent care several times. He was strongly advised to place her in an assisted-living facility. He agreed, and she was moved to a local care facility.

Suzanne’s two adult children (from a previous marriage) filed a petition seeking appointment as their mother’s guardian and conservator. They argued that George’s behavior had not been appropriate. They did not believe his statement that he had taken Suzanne in for assessment and treatment three times. Their petition also claimed he had mismanaged her medications, and suggested that there was some nefarious purpose behind his behavior.

The trial

In a day-long trial before the probate court in Tucson, Suzanne’s sons told the judge that their step-father had a conflict of interest in handling their mother’s affairs. They pointed out that George had become romantically involved with another woman, and she had moved into George and Suzanne’s house with him. The children argued that he was exploiting Suzanne’s estate for his own benefit.

George, for his part, argued that no guardian or conservator was necessary. Yes, Suzanne was by this time incapacitated, which is a requirement before appointment of a guardian. And yes, she was unable to manage her own finances, which is required before appointment of a conservator. But since she had given George a valid power of attorney, neither guardianship nor conservatorship was necessary.

George also insisted that he had behaved appropriately. Even if there were legitimate questions about his management of her care before she was placed, the assisted living facility was taking care of her now. There was no need for appointment of a guardian to manage her personal care. As for finances: he was allowed to live in the marital home, and his romantic interests were irrelevant to Suzanne’s current care or protection.

The probate judge agreed with George. The fact that there was a valid power of attorney — actually two valid power of attorney documents — made appointment of a guardian or conservator unnecessary. There was no reason to be concerned about Suzanne’s current care or protection.

Arizona’s Court of Appeals

Suzanne’s children appealed the ruling. They argued that George had taken advantage of their mother, that he had not acted in her best interest, and that his powers of attorney should be invalidated.

The Court of Appeals upheld the probate judge’s denial of guardianship and conservatorship. They agreed with the trial court’s determination that there was no continuing risk to Suzanne, since everyone agreed that her care was now appropriate. And they noted that George, as a co-owner of the family home, could occupy it — whether or not his romantic partner lived with him.

In passing, the Court of Appeals noted that there is a priority list for who can be appointed as guardian or conservator. If the probate court had decided to appoint someone, the first person on the list would be the person nominated by Suzanne — and that would have been George. The second person on the list? George, as Suzanne’s husband.

But the appellate court never got to that point. One of the primary reasons people sign powers of attorney is to make sure that their affairs can be handled by the person they choose. They intend to avoid court proceedings, and their wishes should be respected later. If a person has a valid power of attorney, the court should feel comfortable in denying a petition for appointment of a guardian or conservator.

The Court of Appeals holding is important, and it should give comfort to people when they sign their estate planning documents. The courts will not lightly bypass the person you name in your valid power of attorney. Unfortunately, the appellate court decision is a “memorandum” decision — that means that it is not published as controlling precedent. If the same issue arises in a new case, the litigants can not point to the holding in this case to support the same principle. But the argument is still good, and should prevail: if you have a valid power of attorney, you should not be the subject of a court proceeding absent very strong evidence of wrongdoing. Guardianship and Conservatorship of Goode, April 14, 2020.

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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.