Questions (and answers) we hear from family caregivers for the vulnerable and frail elderly:
What can I do if the bank will not honor the power of attorney I have for my parent?
This is a common problem with powers of attorney. Under current Arizona law, there is no way to force a bank, title company, or government official to accept the power of attorney. Remember that even though you are acting appropriately and in your parent's best interests, powers of attorney are frequently utilized by exploiters and thieves--the bank may not be sure that your motivations are proper, or may simply have decided not to spend the energy or time to figure out whether you are using the power properly. In our experience, it is often effective to work up the chain of authority--ask to speak to the branch manager, and if she is not helpful ask that she contact her legal department. If the bank has a customer relations division, you might be able to speak with them. You might even involve an attorney--especially the attorney who originally drafted the power of attorney.
If a relative, not previously involved, comes onto the scene and attempts to take over, can a revocable living trust be contested? What about a conservatorship? A power of attorney?
Yes, all of those legal relationships can be contested. A better question might be how difficult it would be to contest each, and how expensive--because if the legal authority is more expensive and difficult to contest, then as a practical matter it might be more effective. A power of attorney is not usually "challenged" in the courts--as a practical matter, if the contesting family member lets the banks and other entities know that there is an issue, they may be less likely to cooperate with the individual named by the power of attorney, and thus make the "challenge" easier to mount. If the issue is making the agent account for his or her actions using the power of attorney, the person who originally signed the power of attorney can insist on that information and anyone appointed as conservator (of the estate) can demand a similar accounting.
A conservatorship can be contested by filing something with the court involved in the proceedings. That usually means hiring a lawyer, though it is not required. The fact of the conservatorship will mean that there is already a court proceeding, and an attorney will ordinarily have been appointed to represent the subject of the conservatorship, so the framework for a challenge is already in place. It is also necessary for a conservator to account to the court at least once a year, so there will be an annual hearing date by which anyone objecting to the conservator's actions could file an objection. The court does not, however, routinely audit conservatorship accountings or the conservator's actions--if someone wishes to challenge the conservator, they will need to initiate the proceedings to do so.
A trust is not usually monitored by the courts, and so anyone challenging the trustee's actions will probably be required to file a proceeding to do so. The fact that the challenger must initiate a court review probably means that in most cases the trust is the most difficult to contest, but of course the circumstances in each case, including the meaning of the term "contest," will be different.
What is the difference between a "guardian" and a "conservator"?
Not every state makes the same distinction between the two terms, but Arizona uses "conservator" to refer to an individual who has been appointed to manage the money of a minor or an adult needing protection. A "guardian," on the other hand, is someone who has been appointed to make personal, living arrangement and health care decisions for an incapacitated adult or a minor child (assuming, in the case of a child, that the parents are not available to make those decisions). In some other states the terms are used differently, so be careful about terminology outside Arizona.
These questions and answers are from the Frequently Asked Questions section of our extensive website. For the entire list of questions submitted to Fleming & Curti partner Leigh Bernstein at last year's (Tucson) Mayor's Caregiver Education conference sponsored by the Alzheimer's Association Desert Southwest Chapter, see the Fleming & Curti website . While there, you can subscribe to our weekly e-newsletter, Elder Law Issues.
Comments