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On August 3, 2010, the topic for Lawyers On Call will be Employment Law and Wrongful Termination. See the State Bar of Arizona web site for more information.
State Bar of Arizona
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Wednesday, July 21, 2010
Saturday, June 19, 2010
The Availability of Summary Administration for Small Estates in Arizona
Temporarily removed for editing.
Saturday, June 5, 2010
Lawyers On Call - Free Legal Advice For Arizonans
On July 6, 2010, the topic for Lawyers on Call will be foreclosures and evictions. See the State Bar of Arizona web site for more information.
State Bar of Arizona
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State Bar of Arizona
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Thursday, April 22, 2010
Serving as a Personal Representative in Arizona - Duties and Responsibilities
A good amount of thought and care should go into the decision of who to name as one’s personal representative, and a number of factors should be considered. The position is one of trust, and the person who serves as personal representative will shoulder a number of responsibilities as he or she is the person who will take care of a person’s affairs once they die. The person named as personal representative should be competent, responsible, and possess the ability to be objective and fair-mined. In cases where a person has already named someone as their agent in a General Durable Power of Attorney, it’s a good idea to name the same person as personal representative of their estate.
The personal representative will be named in the decedent’s Will. If the decedent died intestate (meaning he or she left no Will), then his or her spouse has the right to be named personal representative. If the decedent was not married at the time of his or her death, then any of his or her heirs is entitled to be appointed personal representative, provided that all the other heirs renounce or waive their right to be appointed personal representative.
The general duties of a personal representative are set forth in A.R.S. 14-3703. It’s important to note that a personal representative is a fiduciary who shall observe the standards of care applicable to trustees, which are set forth in the Arizona Trust Code, and include the duty to administer the trust in good faith, the duty of loyalty to the beneficiaries, the duty of impartiality, and the duty to minimize costs and expenses to be borne by the estate. A personal representative owes duties of undivided loyalty, fairness, and impartiality to the creditors and beneficiaries of the decedent’s estate. He or she must be cautious and prudent in dealing with estate assets.
Arizona law allows for both Supervised Administration and Unsupervised Administration probate procedures. During a Supervised Administration, the personal representative is not only responsible to all interested parties, but also to the Court. (Athough not responsible to the Court during an Unsupervised Administration, the personal representative has the same basic duties and responsibilities as during a Supervised Administration.)
The Court will issue an “Order to Personal Representative and Acknowledgement and Information to Heirs” setting forth the duties and responsibilities of serving as a personal representative, which include, but are not limited to, the duty to gather and control all assets that belonged to the decedent at the time of his her death and, after any valid debts and expenses are paid, the duty to distribute any remaining assets to the beneficiaries; within thirty days after appointment, the personal representative must mail notice of said appointment to the heirs and devisees whose addresses are reasonably available to him or her; within thirty days of the admission of the Will to informal probate, the personal representative must give written notice to all heirs and devisees of the admission of the Will to probate, together with a copy of the Will; heirs must be given notification that they have four months to contest the probate (by commencing a formal testacy proceeding); within ten days of appointment, mail a copy of the “Order to Personal Representative and Acknowledgement and Information to Heirs” to all the heirs and devisees of the estate, along with any other persons who have filed a demand for notice; file proof of compliance with the court; publish a notice once a week for three consecutive weeks in a newspaper of general circulation announcing the appointment as personal representative and informing creditors that their claims must be filed within a certain time period; immediately find, identify, and take possession of the estate assets and make proper arrangements to protect them; determine statutory allowances; prepare an inventory of the decedent’s probate assets and their values as of the date of death; keep detailed records of all receipts and expenses of the estate; pay valid debts and expenses; pay taxes; distribute the remaining assets; notify the court of changes of address; determine what is a reasonable compensation for serving as personal representative; and close the estate.
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The personal representative will be named in the decedent’s Will. If the decedent died intestate (meaning he or she left no Will), then his or her spouse has the right to be named personal representative. If the decedent was not married at the time of his or her death, then any of his or her heirs is entitled to be appointed personal representative, provided that all the other heirs renounce or waive their right to be appointed personal representative.
The general duties of a personal representative are set forth in A.R.S. 14-3703. It’s important to note that a personal representative is a fiduciary who shall observe the standards of care applicable to trustees, which are set forth in the Arizona Trust Code, and include the duty to administer the trust in good faith, the duty of loyalty to the beneficiaries, the duty of impartiality, and the duty to minimize costs and expenses to be borne by the estate. A personal representative owes duties of undivided loyalty, fairness, and impartiality to the creditors and beneficiaries of the decedent’s estate. He or she must be cautious and prudent in dealing with estate assets.
Arizona law allows for both Supervised Administration and Unsupervised Administration probate procedures. During a Supervised Administration, the personal representative is not only responsible to all interested parties, but also to the Court. (Athough not responsible to the Court during an Unsupervised Administration, the personal representative has the same basic duties and responsibilities as during a Supervised Administration.)
The Court will issue an “Order to Personal Representative and Acknowledgement and Information to Heirs” setting forth the duties and responsibilities of serving as a personal representative, which include, but are not limited to, the duty to gather and control all assets that belonged to the decedent at the time of his her death and, after any valid debts and expenses are paid, the duty to distribute any remaining assets to the beneficiaries; within thirty days after appointment, the personal representative must mail notice of said appointment to the heirs and devisees whose addresses are reasonably available to him or her; within thirty days of the admission of the Will to informal probate, the personal representative must give written notice to all heirs and devisees of the admission of the Will to probate, together with a copy of the Will; heirs must be given notification that they have four months to contest the probate (by commencing a formal testacy proceeding); within ten days of appointment, mail a copy of the “Order to Personal Representative and Acknowledgement and Information to Heirs” to all the heirs and devisees of the estate, along with any other persons who have filed a demand for notice; file proof of compliance with the court; publish a notice once a week for three consecutive weeks in a newspaper of general circulation announcing the appointment as personal representative and informing creditors that their claims must be filed within a certain time period; immediately find, identify, and take possession of the estate assets and make proper arrangements to protect them; determine statutory allowances; prepare an inventory of the decedent’s probate assets and their values as of the date of death; keep detailed records of all receipts and expenses of the estate; pay valid debts and expenses; pay taxes; distribute the remaining assets; notify the court of changes of address; determine what is a reasonable compensation for serving as personal representative; and close the estate.
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Wednesday, April 21, 2010
Lawyers On Call - Free Legal Advice for Arizonans
On May 4, 2010, the topic for Lawyers on Call will be immigration law. See the State Bar of Arizona web site for more information.
State Bar of Arizona
Disclaimer
State Bar of Arizona
Disclaimer
Sunday, March 7, 2010
Arizona Health Care Power of Attorney
A type of health care directive, a Health Care Power of Attorney is a written designation of an agent to make health care decisions when the person executing the power of attorney is unable to do so. In many cases, a spouse is the natural choice for selection as a health care agent. A son or daughter may also be a wise choice in some situations. It’s wise to name a back-up agent should your first choice be unable to serve for any reason. A Health Care Power of Attorney goes beyond the provisions of a Living Will and provides for health care decisions that are not addressed by a Living Will, which basically covers “end of life” decisions. The appointment of a person to act as an agent is effective until that authority is revoked by the principal or by court order. The document must contain language that clearly indicates the principal’s intent to create a Health Care Power of Attorney, be dated and signed by the principal, and notarized or witnessed in writing by at least one adult who affirms that the notary or witness was present at the time of execution of the Health Care Power of Attorney, and that the principal was of sound mind and free of duress at the time of execution of the Health Care Power of Attorney. A notary or witness shall not be a person designated to make medical decisions on the principal’s behalf, or a person directly involved with the provision of health care to the principal at the time the health care power of attorney is executed. If the Health Care Power of Attorney is witnessed by only one person, that person may not be related to the principal by blood, marriage, or adoption, and may not be entitled to any part of the principal's estate by will or operation of law at the time the Health Care Power of Attorney is executed.
An Agent’s Authorities, Responsibilities, and Immunity
Pursuant to Arizona law, the person appointed as the agent is not responsible for paying the principal’s health care costs unless the agent is otherwise required to do so. The agent must make health care decisions in accordance with the principal’s wishes, and if the Health Care Power of Attorney does not provide sufficient information to determine what the principal would want in any given circumstance, the agent is required to make decisions based on the principal’s values. If named as a health care agent, it’s important to have a conversation with the person executing the Health Care Power of Attorney to gain a good understanding of how they would make their own health care decisions if they were able to do so. An agent who makes good faith health care decisions for a patient is not subject to civil or criminal liability for those decisions.
Responsibilities of Health Care Providers
A person’s health care provider is required to comply with the health care decisions made by that person’s agent unless the health care provider knows that those decisions are inconsistent with the patient’s health care directive, or the health care provider has transferred care to another health care provider. A health care provider who makes good faith health care decisions in reliance on the provisions of an apparently genuine Health Care Power of Attorney or the direction of their patient’s agent is immune from criminal and civil liability. A health care provider who refuses to comply with a decision or a directive must promptly make known their unwillingness and promptly transfer the responsibility for the patient’s care to a health care provider who is willing to act in accordance with the agent’s direction.
Disclaimer
An Agent’s Authorities, Responsibilities, and Immunity
Pursuant to Arizona law, the person appointed as the agent is not responsible for paying the principal’s health care costs unless the agent is otherwise required to do so. The agent must make health care decisions in accordance with the principal’s wishes, and if the Health Care Power of Attorney does not provide sufficient information to determine what the principal would want in any given circumstance, the agent is required to make decisions based on the principal’s values. If named as a health care agent, it’s important to have a conversation with the person executing the Health Care Power of Attorney to gain a good understanding of how they would make their own health care decisions if they were able to do so. An agent who makes good faith health care decisions for a patient is not subject to civil or criminal liability for those decisions.
Responsibilities of Health Care Providers
A person’s health care provider is required to comply with the health care decisions made by that person’s agent unless the health care provider knows that those decisions are inconsistent with the patient’s health care directive, or the health care provider has transferred care to another health care provider. A health care provider who makes good faith health care decisions in reliance on the provisions of an apparently genuine Health Care Power of Attorney or the direction of their patient’s agent is immune from criminal and civil liability. A health care provider who refuses to comply with a decision or a directive must promptly make known their unwillingness and promptly transfer the responsibility for the patient’s care to a health care provider who is willing to act in accordance with the agent’s direction.
Disclaimer
Friday, March 5, 2010
Lawyers On Call - Free Legal Advice for Arizonans
On April 6, 2010, the topic for Lawyers On Call will be personal injury. See the State Bar of Arizona web site for more information.
State Bar of Arizona
Disclaimer
State Bar of Arizona
Disclaimer
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