Does Guardianship Override Power of Attorney in Arizona?

Many people will execute a power of attorney to give a trusted family member, friend, or advisor the legal authority to make decisions on their behalf, especially if they become incapacitated. Guardianship can also allow someone to act on an incapacitated person’s behalf. However, does guardianship override the power of attorney when the subject of guardianship has already executed a power of attorney?

Power of attorney is a private agreement between a principal (the person who granted power of attorney) and their agent/attorney-in-fact (the person given power of attorney). Because courts establish guardianship, it can supersede the authority granted under a power of attorney. Courts typically establish guardianship to override power of attorney when the principal already lacked legal capacity when they executed it or when the agent has misused their authority. 

What Is the Difference Between Guardianship and Power of Attorney in Arizona?

Guardianship and power of attorney have several notable differences under Arizona law.

Guardianship

A guardianship represents a court-created legal arrangement giving someone the authority to act on behalf of an incapacitated individual. A court can create a guardianship if it finds that a person cannot manage their affairs by themselves or with the help of trusted advisors, usually due to physical disability, cognitive impairments, or substance abuse/addiction issues.

A court may create a general guardianship, which gives a guardian authority over a person’s legal, medical, financial, and personal affairs. If the court finds that a person can make some decisions, it may order a limited guardianship, which only allows the guardian certain authorities.

Power of Attorney

A power of attorney (POA) represents a private agreement between two people under which a principal gives an agent/attorney-in-fact the authority to make specific decisions or take specific actions on behalf of the principal. A principal must create a power of attorney while they still have the capacity to manage their own affairs.

The agent can act on behalf of the principal even while the principal has the capacity to take those actions themselves. However, a principal can create a durable power of attorney, which expressly continues the agent’s authority should the principal become incapacitated.

What Reasons May Allow a Guardianship to Override Power of Attorney?

A person may create a durable power of attorney to avoid the need for guardianship if they become incapacitated. As a result, courts typically refrain from establishing guardianship over a person with a durable POA that grants the same scope of authority the court would grant to a guardian.

However, courts may choose to override a power of attorney with a guardianship, such as when:

• The power of attorney does not grant a broad enough scope of authority to cover all the decisions the person cannot make.
• The principal did not have the legal capacity to create a power of attorney.
• The agent has misused their authority to benefit themselves at the principal’s expense.
• The court determines the agent cannot adequately fulfill their duties.
• The agent has become incapacitated.

What Is Required to Establish Guardianship in Arizona?

To establish guardianship, a court must find that a person lacks the legal or physical capacity to make and communicate decisions regarding their legal, financial, personal, or medical affairs. A court also must identify a person capable of serving as guardian. The person must be of sound mind and over 18. In most cases, an interested party, such as a family member or friend, will petition the court to establish guardianship for a loved one – the petitioning party can also request an appointment as guardian.

The court will notify the subject person and their family members of the guardianship petition and hold a hearing to allow all interested parties to argue for or against guardianship. The court will evaluate the subject person’s capacity to manage their affairs and the petitioning party’s fitness to serve as guardian. The court must also consider the subject person’s need for guardianship when other alternatives, such as an existing power of attorney, may protect the person’s interests and welfare as well as or better than guardianship.

When the court finds a need for guardianship, it will appoint someone to serve as guardian and define the scope of the guardian’s authority, depending on the subject person’s capacity to manage some of their affairs.

How Do You Override Power of Attorney as a Guardian?

When the court appoints you as guardian for a loved one with an existing power of attorney, how do you override the agent’s authority under the POA? First, you may talk to the agent to convince them to step down. You may also have to convince alternate agents named in the POA to refuse the role once the current agent steps down.

If any agents refuse to step down, you may need to seek a court order clarifying your and the agent’s authority or expressly overriding the power of attorney in favor of the guardianship. The court can issue an order determining the scope of the agent’s and guardian’s respective authority or revoking the power of attorney in favor of guardianship. Be prepared to prove that overriding power of attorney is in the principal’s best interest. An Arizona guardianship lawyer can guide you through this process.

How Can an Arizona Guardianship Attorney Help?

An Arizona estate planning attorney from Mushkatel, Gobbato, & Kile, P.L.L.C. can help you set up guardianship for a loved one and manage your authority as guardian when your loved one already has a power of attorney by:

• Thoroughly investigating your loved one’s circumstances to obtain evidence to establish the need for guardianship
• Preparing and filing the guardianship petition
• Arguing in court in favor of guardianship and for the scope of authority needed to protect your loved one’s interests and welfare
• Reviewing your loved one’s power of attorney and explaining the effects of guardianship on the agent’s authority
• Going to court when necessary to help you revoke a power of attorney in favor of your authority as guardian

Contact an Arizona Guardianship Lawyer

When you need to establish guardianship for a vulnerable loved one, an experienced estate planning lawyer from Mushkatel, Gobbato, & Kile, P.L.L.C. can help you understand the effects on your loved one’s existing power of attorney. Our clients say we are “smart, professional, effective, and efficient” and provide “peace in the middle of a very rough storm.” With a combined 50 years of experience serving Arizonans, our dedicated team has the skills, resources, and knowledge your case needs. Contact us today for an initial consultation to discuss your legal options with an Arizona guardianship attorney.

Visit Our Arizona Guardianship Law Offices

About the Author

Zachary Mushkatel

Zachary Mushkatel discovered his affinity for the law by chance. As a political science major at the University of Arizona, he first aspired to become a professor. But an unexpected invitation to participate on a mock trial team at the university encouraged him to turn his competitive spirit and drive…