Appointed as Agent for a Medical Power of Attorney, Don’t Let it Go to Your Head!All too often when a family member is appointed as the medical decision maker or “Agent” under a loved one’s power of attorney, the Agent will let that fiduciary responsibility go to their head and wield unreasonable control.
Again, too often the Agent will dictate controls, restrictions or limits on others, including children, friends and immediately family members, from having access or individual contact with the disabled person.
Whether an Agent’s wielding excessive power stems from a sense of enjoying the control over another or from a life-time of ill feelings or harboring past emotional conflicts with other family members, restricting access to a loved one is almost always detrimental to the person suffering from medical disabilities.
Unfortunately, during the pandemic, we have seen a plethora of people display unreasonable dominion over loved ones under the power granted under a medical power of attorney. Therefore, the Arizona legislature enacted a new law in late 2021 that clarifies and resolves such absurd behavior.
An Agent acting under a valid medical power of attorney has a fiduciary responsibility to take care of the disabled person (“Principal”) in a manner that is in the best interest of the Principal, without letting emotions, personal & family history or other motivating factors cloud the Agent’s decisions.
https://www.azleg.gov/viewdocument/?docName=https://www.azleg.gov/ars/36/03211.htm” rel=”noopener” target=”_blank”>Arizona Revised Statutes § 36-3211 codifies this requirement as to unreasonable control, by stating “an Agent may not limit, restrict or prohibit reasonable contact between principal and any other person without prior court approval, unless the principal has granted the agent such authority in a health care directive.”
Additionally, by using the word “shall” the same statute requires the Agent to encourage and allow contact between a Principal and other persons who have a “significant relationship” with the Principal.
As there can always be a debate about what is in the Principal’s “best interest” or who has a “significant relationship” with the Principal, the new statute establishes guidelines to resolve such issues. The person whose access has been restricted, or the actual Principal (disabled person) whose contact with others has been restricted, or the Agent who believes such contact is not in the best interest of the Principal, can each petition the court to resolve such matters under ARS § 36-3211.
As with most legal matters, petitioning the court should be a family’s last resort. It’s more important to properly plan for these contingencies in an appropriately drafted medical health care power of attorney, including choosing an Agent who will allow consistent regular contact with your family members and friends when you are in a disabled state, to avoid unnecessary familial conflict, or worse yet, court intervention.
If you have any questions regarding a power of attorney, family based estate planning, Arizona probate administration, trust administration or any other legal issues, please call the attorneys at Rowley, Chapman & Barney (480) 833-1113 .
Attorney Profile: Kenneth Barney, Estate Planning
Main Areas of Law:
Estate Planning – Wills, Trusts & More
Probate in Arizona
Blog: Ken Barney’s articles
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