The Health Care Power of Attorney allows the Principal to pre-direct the type of care they want to receive in the event they are unable to communicate their healthcare wishes themselves. Conversely, the Durable General Power of Attorney allows for the Principal to appoint an Agent to manage their personal and financial affairs in the event of the Principal’s incapacity. 

Without having powers of attorney, a person’s loved ones could be forced to take legal action to obtain authority to make medical and financial decisions on their behalf. This can have devastating results, as a person who needs their Agent to act often needs them to do so quickly. However, if the incapacitated individual has powers of attorney in place, the Agent can generally act immediately as the formalities that need to be navigated without the presence of powers of attorney are absent. 

For the foregoing reasons, powers of attorney generally serve as an incredibly important asset to those who have them. Unfortunately, circumstances do arise in which an Agent has breached the trust instilled in them by the Principal and has engaged in acts which are contrary to the Principal’s intent. 

These breaches can come in many forms, but they often involve financial exploitation, where the Agent has begun to use the assets of the Principal for their own benefit. Less frequently, we have seen instances in which an Agent has engaged in direct acts that are physically and mentally harmful to the Principal. These acts can range from the Agent making decisions for the Principal that conflict with the Principal’s wishes – such refusing to allow the Principal to get vaccinated, even though the Principal has always been a strong proponent of vaccinations – to situations in which the Agent’s actions undermine the Principal’s wellbeing. 

If a family member is experiencing a situation where an Agent does not appear to be acting in the best interest of the Principal, legal action is often necessary. These “legal actions” often take the form of guardianship and conservatorship proceedings. 

If the Agent is engaging in financial exploitation, the most appropriate legal action is a

conservatorship

. In conservatorship proceedings, the court appoints an individual to make decisions for, and to account to the court for, the Principal’s financial affairs. If granted, the conservatorship overrides the Durable General Powers of Attorney and the newly appointed Conservator is charged with managing and protecting the incapacitated individual’s finances. 

If the Agent is engaging in acts that are physically or mentally harming the Principal, the most common legal action taken is a

guardianship

. Guardianship proceedings are very similar to conservatorship proceedings, and in fact, the petitions for guardianship and conservatorship are often filed jointly. If granted, the guardianship overrides the Health Care Power of Attorney, and the newly appointed Guardian is charged with managing the incapacitated individual’s health and wellbeing. 

The problem with guardianship and conservatorship proceedings is time. A medical report must be filed along with the petition for the guardianship and/or conservatorship, and occasionally it can be difficult for a loved one to obtain this report if the Agent is restricting access to the incapacitated individual. If a medical report is obtained and the petition is filed, the court then appoints a fiduciary who will interview the incapacitated individual and make a suggestion to the court as to whether the guardianship and/or conservatorship is necessary. In addition, the court will generally appoint an attorney to represent the incapacitated individual in the proceedings, and the attorney will need to need to contact the incapacitated individual to conduct their own independent due diligence. 

All of these formalities take time that the incapacitated individual may not have. Fortunately, in the rare instances when an Agent has health care power of attorney over a Principal, and the Agent is physically or mentally harming the Principal, there is a unique and seldom-used statute that can circumvent the often-time-consuming guardianship proceedings. 

A.R.S. § 36-3206

allows for an interested party to challenge the actions of the health care Agent, if there is reasonable cause to believe decisions being made by the Agent are contrary to the Principals wishes, or if the Principal’s wishes are unknown, the Principal’s best interests. Petitioning the court under this statute does two incredibly unique things: 

  • First, it allows for the court to enter an immediate order, pending a later hearing, directing the provision or withholding of specific medical treatments. This can be a life-saving remedy if an Agent is withholding medications or substances that a Principal needs to survive, or alternatively, overdosing the Principal with medications that can cause death.

  • The second unique aspect of A.R.S. § 36-3206 is that it mandates a hearing within five business days. When filing for a guardianship and/or conservatorship, the court has discretion to determine whether an emergency is present and whether it will allow for an expedited hearing. While a family member may think there is an obvious emergency when their loved one appears to be suffering harm, the court may disagree. A.R.S. 36-3206 removes the court’s discretion and guarantees that the case will be heard on an extremely expedited basis. 

While it is our sincerest hope that none of our clients will need to consult with us about circumstances in which an Agent is not acting in the best interest of loved one, please know that Frazer Ryan’s

elder law

and

mental health

attorneys are well versed in the nuances of guardianship and conservatorship law, and are ready to assist you if needed.