As soon you turn 18 here in Arizona, you're considered an adult according to A.R.S. §1-215 (3) and your parents or guardians lose the legal authority to make decisions for you. They no longer have automatic access to your medical and financial records without your permission. But what happens if you become incapacitated? What do you need to do to be sure others you trust can care for you and manage your estate?
Q: What is a power of attorney?
A: A power of attorney is a legal document that allows someone to make
decisions or act on behalf of another person in financial, medical, or legal
matters. A.R.S. §14-5501
Q: What is an estate?
A: At 18, most adults haven't accumulated a lot of assets, but your
estate is probably bigger and more important than you realize. An estate is
not just all the money, property, and other assets that a person owns (like
houses, cars, bank accounts, investments, and personal belongings), but it
also includes important things like educational transcripts, electronic
communications, and digital assets. And for the purposes of this discussion,
your health is a major “asset” that must be protected and planned for too.
Q: What happens if I am sick, injured or otherwise unable to care for
myself?
A: If you can't advocate for yourself due to illness or injury, nobody
can step in to manage your medical or financial matters without certain
documents to give them official permission. An estate plan for most
18-year-olds would likely just include a financial power of attorney, a health
care power of attorney, and a living will. The good news is that these
documents are easy to set up. Here's what each document does:
- Financial Power of Attorney: If you get sick or injured, someone may need to help manage your finances. With a financial power of attorney, you can name your parents, a guardian, or someone else you trust to pay bills, make deposits, handle investments, and manage any money matters. This is also useful if they want to help with financial planning.
- Health Care Power of Attorney & Living Will: Like the Financial Power of Attorney, a Health Care Power of Attorney lets you designate a healthcare representative (a trusted parent or guardian) to care for you if you if you become seriously ill or incapacitated. This person might choose doctors and medical treatments, decide on surgeries or other procedures, approve or refuse medications, select care facilities and more based on your known wishes. A Healthcare Power of Attorney should be paired with a Living Will if you become terminally ill or permanently unconscious, as defined by state law.
- HIPAA Release: Another important document is the Health Insurance Portability and Accountability Act (HIPAA) Release. This allows the people you love and trust to have access to records and visit you in the hospital while still keeping your information private from others.
Q: How do I have these estate planning documents created?
A: You have several choices depending on your needs.
- Arizona has free Life Care Planning documents through the Attorney General's office online: https://www.azag.gov/issues/elder-affairs/life-care-planning. You can find information as well as free forms to download and complete. The information is available in both English and Spanish and there are many related helpful resources including a contact source for questions. You can also find a general (financial) power of attorney on most county superior court websites. Here is the link to the one offered in Maricopa County: https://superiorcourt.maricopa.gov/llrc/gn_poa1/
- You can elect to use commercially prepared estate planning software that is available online.
- You can decide to work with an estate planning attorney here in Arizona to complete your documents. A lot of people choose to work with an attorney because an estate plan should be individually-tailored and updated regularly based on life events, such as marriage, birth, home purchase and more. You can search for estate planning attorneys on the Arizona State Bar website: www.azbar.org/for-the-public
Q: How do I choose an agent to fulfill my wishes?
A: Choosing an agent for to manage your health or finances when you
cannot is an important decision. Here are some steps to help you choose the
right person:
- Consider Trustworthiness: Select someone who is honest and reliable. They will be responsible for managing and distributing your assets according to your wishes.
- Assess Organizational Skills: Choose a person who is organized and detail-oriented. They will need to keep track of financial matters and legal documents.
- Evaluate Financial Acumen: Pick someone who understands financial matters, as they will handle your finances, pay bills, and manage taxes.
- Look for Availability: Ensure the person has the time to commit to the role. Being a personal representative can be time-consuming.
- Think About Age and Health: Choose someone who is likely to outlive you and is in good health to fulfill their duties.
- Discuss the Role: Talk to the person you're considering to make sure they're willing and able to take on the responsibility.
- Consider a Backup: Name an alternate representative in case your first choice is unable or unwilling to serve when the time comes.
- Professional Help: If you don't have a suitable person in mind, consider naming a professional, such as a private fiduciary, to act as your agent.
Q: Arizona has a surrogacy statute (A.R.S. §36.3231) that gives parents
an opportunity to make decisions for their children of any age. Do I still
need an estate plan or is this sufficient?
A: Legally speaking, parents could make health care decisions for their
18-year-olds because of Arizona surrogacy laws. The trouble with this method
is:
- It isn't easy for hospitals to determine who is the right surrogate — how do you easily identify that someone is actually someone's parent? Or if someone else should be the surrogate (like if the sick person is married)? It is very complicated and usually with health matters time is of the essence.
- The surrogacy laws might not match someone's wishes and they probably don't apply the same way if you travel out of state.
- The law doesn't specify anything other than a surrogate and thus if you have specific health wishes, you can't rely on surrogacy laws alone to see them through.
- Surrogacy laws only apply to health care and thus cannot be relied on for financial matters.
Q: If you are going to college or otherwise moving outside of Arizona,
does it matter where you have these documents created?
A: If you create valid documents in Arizona and then move out of state,
those documents should still be valid and recognized in that new state.
However, if need to update your wishes when living in a different state, your
documents should be prepared by a professional in that state.