Power of Attorney and Health Care – General – Arizona
14-5501. Durable power of attorney; creation; validity
A. A durable power of attorney is a written instrument by which a principal designates another person as the principal’s agent. The instrument shall contain words that demonstrate the principal’s intent that the authority conferred in the durable power of attorney may be exercised:
1. If the principal is subsequently disabled or incapacitated.
2. Regardless of how much time has elapsed, unless the instrument states a definite termination time.
B. The written instrument may demonstrate the principal’s intent required by subsection A of this section using either of the following statements or similar language:
1. “This power of attorney is not affected by subsequent disability or incapacity of the principal or lapse of time.”
2. “This power of attorney is effective on the disability or incapacity of the principal.”
C. A power of attorney executed in another jurisdiction of the United States is valid in this state if the power of attorney was validly executed in the jurisdiction in which it was created.
D. From and after August 1, 1998, except as provided in section 28-370, an adult, known as the principal, may designate another adult, known as the agent, to make financial decisions on the principal’s behalf by executing a written power of attorney that satisfies all of the following requirements:
1. Contains language that clearly indicates that the principal intends to create a power of attorney and clearly identifies the agent.
2. Is signed or marked by the principal or signed in the principal’s name by some other individual in the principal’s conscious presence and at the principal’s direction.
3. Is witnessed by a person other than the agent, the agent’s spouse, the agent’s children or the notary public.
4. Is executed and attested by its acknowledgment by the principal and by an affidavit of the witness before notary public and evidenced by the notary public’s certificate, under official seal. See Form.
E. The execution requirements for the creation of a power of attorney provided in subsection D of this section do not apply if the principal creating the power of attorney is:
1. A person other than a natural person.
2. Any person, if the power of attorney to be created is a power coupled with an interest. For the purposes of this paragraph, “power coupled with an interest” means a power that forms a part of a contract and is security for money or for the performance of a valuable act.
14-5502. Effect of lapse of time, disability or incapacity
All acts done by an agent pursuant to a durable power of attorney during any period of disability or incapacity of the principal has the same effect and inures to the benefit of and binds the principal and the principal’s successors in interest as if the principal were not incapacitated or disabled.
14-5503. Relation of agent to court appointed fiduciary
A. If, following execution of a durable power of attorney, a court of the principal’s domicile appoints any conservator or other fiduciary charged with the management of all of the principal’s property or all of the principal’s property except for specified exclusions, the agent is accountable to the court appointed fiduciary as well as to the principal. The court appointed fiduciary has the same power to revoke or amend the power of attorney that the principal would have if the principal were not disabled or incapacitated.
B. A principal may nominate, by a durable power of attorney, the conservator or the guardian of the principal for consideration by the court if protective proceedings for the principal or estate are commenced.
14-5504. Revocation; termination; effect; notice
A. The death of a principal who has executed a durable power of attorney does not revoke or terminate the agency as to the agent or other person who, without actual knowledge of the death of the principal, acts in good faith under the power. Any action taken in good faith pursuant to this subsection, unless otherwise invalid or unenforceable, binds successors in interest of the principal.
B. The disability or incapacity of a principal who has previously executed a written power of attorney that is not a durable power does not revoke or terminate the agency as to the agent or other person who, without actual knowledge of the disability or incapacity of the principal, acts in good faith under the power. Any action taken in good faith pursuant to this subsection, unless otherwise invalid or unenforceable, binds the principal and the principal’s successors in interest.
14-5505. Continuance of durable powers of attorney by affidavit
A. An affidavit executed by the agent under a durable power of attorney stating that the agent did not have at the time of exercise of the power actual knowledge of the termination of the power by revocation or of the principal’s death creates, in the absence of fraud, a rebuttable presumption of the nonrevocation or nontermination of the power at that time.
B. If the exercise of the power of attorney requires execution and delivery of any instrument that is recordable, the affidavit when authenticated for purposes of recording is also recordable.
C. This section does not affect any provision in a power of attorney for its termination by expiration of time or occurrence of an event other than express revocation or a change in the principal’s capacity.
14-5506. Powers of attorney; best interest; intimidation; deception; definitions
A. Except as provided in subsection B of this section, an agent shall use the principal’s money, property or other assets only in the principal’s best interest and the agent shall not use the principal’s money, property or other assets for the agent’s benefit. An agent who violates this subsection is subject to prosecution under title 13 and civil penalties pursuant to section 46-456.
B. Any authority, the use of which is not in the principal’s best interest or is for the agent’s benefit including contracted for commissions, fees or other compensation shall be specifically identified in detail within the instrument or a written contract signed by the principal that is specifically identified by the instrument and be separately initialed by the principal and the witness at the time of execution.
C. If the agent acted with intimidation or deception as defined in section 46-456 in procuring the power of attorney or any authority provided in the power of attorney, the agent is subject to prosecution under title 13 and civil penalties pursuant to section 46-456.
D. A power of attorney executed by an adult who does not have capacity is invalid. In a criminal proceeding, the agent has the burden of proving by clear and convincing evidence that the principal had capacity. In a civil proceeding, if the party challenging the validity of a power of attorney on the grounds of lack of capacity proves by a preponderance of the evidence that, at the time the power of attorney was executed the principal was a vulnerable adult, the agent has the burden of proving by clear and convincing evidence that the principal had capacity. In a civil proceeding if the party challenging the validity of a power of attorney on the basis of lack of capacity does not prove by a preponderance of the evidence that, at the time the power of attorney was executed, the principal was a vulnerable adult, the agent has the burden of proving by a preponderance of the evidence that the principal had capacity.
E. A person who in good faith either assists or deals with an agent is protected as if the agent properly exercised the agent’s power regardless of whether the authority of that person as the agent has been terminated.
F. For purposes of this section:
1. “Best interest” means the agent acts solely for the principal’s benefit.
2. “Capacity” means that at the time the power of attorney was executed the principal was capable of understanding in a reasonable manner the nature and effect of the act of executing and granting the power of attorney.
3. “Vulnerable adult” has the same meaning prescribed in section 46-451.
14-5507. Applicability of article
This article does not apply to health care directives that are validly executed under section 36-3221 and does not establish authority under a durable power of attorney for the purposes of health care decision making.