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.

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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

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Transferring a Motor Vehicle by Non-Probate Affidavit in Arizona

Pursuant to Arizona Revised Statute 14-3971(D), the Motor Vehicle Division shall transfer title of a motor vehicle from the decedent to the successor or successors on presentation of an affidavit stating that thirty days has passed since the decedent’s death, and either (1) an application or petition for the appointment of a personal representative is not pending and a personal representative has not been appointed in any jurisdiction and the value of all personal property in the decedent’s estate is less than $50,000 as valued as of the date of death or (2) the personal representative has been discharged or more than one year has passed since a closing statement has been filed and the value of all personal property in the decedent’s estate is less than $50,000 as valued as of the date of the affidavit. In addition, the claiming successor must be entitled to the vehicle.

To make the transfer, you will need to turn in the certificate of title to the Motor Vehicle Division along with a certified copy of the decedent’s death certificate, Title and Registration Application form, and the Non-Probate Affidavit for Obtaining Title to the Vehicle of an Arizona Decedent which can be found here

A.R.S. 14-3971

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Estate Planning Attorney Francis X. Morrissey, Jr. Has Been Disbarred

Photo Credit: daylife

On January 6, 2010, I wrote about Anthony D. Marshall, son of Brooke Astor, and his sentence of 1 - 3 years in prison for defrauding his mother as she suffered from Alzheimers. A co-defendant, Francis X. Morrissey, Jr., a lawyer who did estate planning for Mrs. Astor, was also convicted of a series of fraud and conspiracy charges, as well as one count of forging Mrs. Astor’s signature on an amendment to her will. That blog entry can be read in its entirety here


By operation of law, Francis X. Morrissey, Jr. (pictured above) has now been disbarred.

Matter of Morrissey

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Types of Wills Recognized by the State of Arizona

The Arizona Code recognizes holographic wills, attested wills, and self-proved wills. To be valid, a will must comply with the execution formalities of either a holographic will or an attested will. A holographic will does not require witnessing, but it must be signed by the testator, and the material provisions (which would include the identity of the testator's property and the beneficiaries chosen to receive that property) must be in the testator's handwriting.

An attested will must be in writing and signed by the testator and at least two witnesses. The will does not have to be signed by the testator in the presence of the witnesses, and the witnesses do not have to sign in the presence of the testator or each other. However, the testator must then tell the witnesses that the signature on the document is, indeed, the testator's or that the document constitutes the testator's will.

Most attorneys continue to execute an attested will with greater formality by having the testator sign in the presence of two witnesses, who then sign the will in the testator's presence at his or her request, and in the presence of each other. This helps prevent any question about the validity of the will if it must be probated in another state.

The advantage of a self-proved will is most evident in the event of a will contest. Formalities of execution are conclusively presumed if a self-proved will is contested in a formal testacy proceeding. An attested will may be self-proved either at the time of the original execution or later. Regardless of when an attested will is made self-proved, the process involves an acknowledgment by the testator and affidavit of the witnesses before a notary public. There are statutory requirements regarding the content of the language that must be included at the end of the will if it is to be self-proved.

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Arizona Homestead Allowance, Exempt Property Allowance, and Family Allowance

Under Arizona law, if the decedent was domiciled in Arizona, the surviving spouse can claim a Homestead Allowance in the amount of $18,000. If there is no surviving spouse, each minor child and each dependent child is entitled to an equal share of the $18,000. The surviving spouse is also entitled to an Exempt Property Allowance in the amount of $7,000. If there is no surviving spouse, each minor child and each dependent child are entitled jointly to the $7,000. Finally, a surviving spouse, as well as minor and dependent children, are entitled to a Family Allowance, which is a "reasonable allowance" for maintenance during the period of administration. Similar to owning a share in community property, this protects against disinheritance by the testator since they are rights conferred by statute. In addition, because these allowances take precedence over creditors' claims except expenses of administration, they can protect the family of the deceased against creditors.

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Lawyers On Call - Free Legal Advice for Arizonans

On March 2, 2010, the topic for Lawyers On Call will be tax law. See the State Bar of Arizona web site for more information.

State Bar of Arizona

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