May I challenge the validity of a power of attorney and be a guardian for another?
Full Question:
Answer:
A power of attorney is an instrument containing an authorization for one to act as the agent of the principal that terminates at some point in the future either by its terms or by operation of law such as death of the principal or agent. These have also been called letters of attorney. The person appointment is usually called an Attorney-in-Fact. The person making the power of attorney appointment is called the principal.
A valid power of attorney requires the signature of the principal. A hospital administrator cannot execute a power of attorney on behalf of someone else. Therefore, it would be recommended that you obtain a copy of any document the adminstrator is relying upon.
A valid power of attorney will only appoint ONE person to act on behalf of the principal.
If the power of attorney is not valid, either because it wasn't signed properly or if you believe it was signed under the duress of the person named as the agent, you may petition the local superior court.
You may also petition the court to be named as temporary guardian over someone who cannot make decisions for themself.
Under Arizona law, a guardian and/or conservator can be appointed for a person who suffers from mental illness, mental disorder, physical illness or disability, chronic use of drugs, chronic intoxication or (in the case of conservatorship) confinement, disappearance or detention by a foreign power. In addition, the court must specifically find that the ward is unable to make or communicate responsible decisions and is therefore unable to provide food clothing and shelter without assistance, before appointing a guardian. Appointment of a conservator can only be made when the court finds that there are assets that will be wasted or dissipated without proper management, or that provision must be made for the care of the ward or his dependents.
A guardian is responsible for most of the life decisions that must be made for his ward, including authorization or withholding of medical care, living arrangements and the like. The relationship is analogous to that between a parent and his minor child. The guardian is limited in some of his powers, however. For instance, the guardian may not admit his ward to a mental health treatment agency involuntarily (except after a special court proceeding) or write a will for his ward.
A guardian is not expected to handle income or property of his ward. The law recognizes, however, that some payments may be made to a guardian for the benefit of his ward. In practice, Social Security, SSI or other recurring payments are frequently handled by guardians, who can then be required to report to the Court just as a conservator would.
The guiding principle governing the actions of a guardian must always be the best interests of his ward. The interests of the guardian himself, society at large or the convenience of administration must in every case be subordinated to the ward's best interests. Perhaps the only exception to this principle widely recognized by the courts exists in the "right-to-die" cases, in which great weight is accorded to any opinions expressed by the ward prior to his incapacity.
A guardian's powers may be limited by the Court. As an example, the court might authorize the guardian only to make medical decisions. Any limitations on the powers of a guardian will be clearly displayed on his Letters of Appointment (the court document which actually gives him the authority to act).
B. Powers of Conservator.
A conservator is appointed to handle the financial affairs of a person deemed to be in need of protection. A conservator's power is limited to financial matters and does not include the power to control his ward's living arrangements or medical care, though the practical effect of a conservator's choice of rental arrangement or medical provider may be control of those decisions for his ward.
By accepting appointment and recording his Letters of Appointment with the County Recorder, the conservator holds title to his ward's property in trust for the ward. The fiduciary responsibility thus created is of the highest order, and the conservator must fully account annually to the Court and remains liable for the acts he undertakes on behalf of the estate until the Court has approved those acts. To assure his faithful performance of his fiduciary responsibilities, a conservator must post a bond; the amount of the bond should be approximately the value of the ward's property plus one year's anticipated income. It is also possible to have a conservator appointed for a single transaction or a limited purpose. The limitations of such a conservator will be clearly displayed on his Letters.
Every petition for guardianship or conservatorship must be filed with the Court and served upon the proposed ward. Notice is given to other persons (including spouses, adult children and preexisting guardians and conservators of the ward). The proposed ward must always be represented by counsel, either of his own choice or appointed by the Court. A visitor and physician must be appointed and report to the Court. The hearing itself must be public and the proposed ward permitted to attend and be heard. Finally, the proposed ward is entitled to have a jury decide the matter, rather than a judge, if he so desires.
