Planning Ahead

General/Durable Powers of Attorney

This article provides a brief overview of general/durable powers of attorney. To learn more about health care powers of attorney, please read the article on this website entitled “Health Care Powers of Attorney and Living Wills.”

What is a power of attorney?

A power of attorney (or “POA”) is a written authorization to represent or act on behalf of another person.

The person who authorizes someone else to represent them or to act on their behalf is called the “principal.”

The person who is authorized by the principal to represent the principal or to act on the principal’s behalf is called the “agent.”

What are the main types of POAs?

The main types of POAs include each of the following:

general power of attorney: authorizes the agent to make personal and business decisions for the principal so long as the principal remains capable of granting or revoking such a power (the agent who has a general POA ordinarily ceases to have authorization to represent or act on behalf of the principal if and when the principal becomes incapacitated or dies)

durable general power of attorney: authorizes the agent to continue to represent or act on behalf of the principal even if and after the principal becomes incapacitated (it remains in effect until the principal dies or revokes the POA)

special or temporary power of attorney: authorizes the agent to make personal and/or business decisions for the principal in one or more specific areas and/or for a specified limited period of time

health care power of attorney: authorizes the agent to represent or act on behalf of the principal concerning the principal’s health care

NOTE: To learn more about health care powers of attorney, please read the article on this website entitled “Health Care Powers of Attorney and Living Wills.”

Who may authorize a general/durable POA?

A principal may only authorize an agent to represent the principal or act on the principal’s behalf if and when the principal is at least 18 years of age, is of sound mind, and is not being coerced or unduly influenced, and therefore has legal “capacity.”

To have the capacity to create a valid POA, the principal must be “capable of understanding in a reasonable manner the nature and effect of the act of executing and granting the power of attorney.”

Any agent who uses intimidation or deception in order to obtain a POA or any authority provided by a POA is subject to criminal prosecution and civil penalties. 

How is a general/durable POA created?

A general/durable POA is created when, after the document has been prepared and the principal has reviewed and understands it, the principal and a witness sign the document in front of a Notary Public.

The principal must swear under oath that they are 18 years of age or older, of sound mind, and under no constraint or undue influence; that the POA is being signed willingly; and that the POA is being executed freely and voluntarily for the purposes it expresses.

The witness must swear under oath that what the principal has sworn to is true.

What should the principal do with a general/durable POA after it has been created?

After a general/durable POA has been created, the principal should make multiple copies of the document, give one copy to the agent, bring the original and a copy to any person or organization that the principal thinks should know about the POA, leave a copy with any such person or organization, and keep the original in a safe place in the principal’s possession.

May a general/durable POA be revoked?

Yes, the principal may revoke a general/durable POA so long as the principal has legal capacity. The process of revoking a general/durable POA is the same as the process of creating a general/durable POA: A general/durable POA is revoked when, after the revocation document has been prepared and the principal has reviewed and understands it, the principal and a witness sign the document in front of a Notary Public.

After the document revoking the general/durable POA has been created, the principal should make multiple copies, give one copy to the former agent, bring the original and a copy to every person and organization which previously received a copy of the POA, leave a copy with any such person or organization, and keep the original in a safe place in the principal’s possession. It is recommended that a copy of the revoked POA be attached to every copy of the document revoking the POA, with the word “REVOKE” written by the principal across the top of the revoked POA, with the date and the principal’s initials placed underneath the original signature.

What sorts of acts may an agent with a general/durable POA perform on behalf of the principal?

personal  finances: on behalf of the principal, the agent may (for example) withdraw money from bank accounts belonging to the principal; remove the contents of safe deposit boxes rented by the principal; ask for, demand, sue for, recover, collect, and/or receive any money, debt, account, legacy, bequest, interest, dividend, annuity, or demand which is or becomes due, owing or payable, belonging to, or claimed by the principal and to use and take any lawful means to recover it; borrow money and to execute and deliver notes with or without security; and loan money and receive notes with such  security as the agent deems proper.

real property: on behalf of the principal, the agent may (for example) contract for, purchase, receive and/or take possession of real property; lease real property for any term or purpose; sell, exchange, subdivide, grant or convey real property with or without warranty, covenant, or restrictions; and mortgage, transfer in trust, or otherwise encumber real property to secure payment of a note or performance of any obligation or agreement.

personal property: on behalf of the principal, the agent may (for example) contract for, buy, sell, exchange, transfer, endorse and in any legal manner deal in and with personal property; and mortgage, transfer in trust, or otherwise encumber personal property to secure payment of a note of performance of any obligation or agreement.

business transactions: on behalf of the principal, the agent may (for example) sign, execute, acknowledge, and deliver any deed, lease, assignment of lease, covenant, indemnity, agreement, mortgage, deed of trust, assignment of mortgage, or beneficial interest under deed of trust, subdivision or plat, extension or renewal of any  obligation, subordination or waiver of  priority, bill of lading, bill of sale, bond, note, receipt, check, evidence of debt, full or partial release of mortgage judgment or other debt, and such other instruments in writing of any kind or class as may be necessary or proper in the premises.

What Arizona law governs general/durable POAs?

General/durable POAs are governed by Arizona Revised Statutes (A.R.S.) Title 14, Chapter 5, Article 5, at § 14-5501 et seq.

Sources and further reading

American Bar Association – “Power of Attorney”: https://www.americanbar.org/groups/real_property_trust_estate/resources/estate_planning/power_of_attorney

Arizona Revised Statutes (A.R.S.) Title 14: https://www.azleg.gov/arsDetail/?title=14

Maricopa County Superior Court – “Power of Attorney (General): Forms and Instructions”: https://superiorcourt.maricopa.gov/media/3478/gnpoa1z.pdf

Maricopa County Superior Court – “Power of Attorney Revocation: Forms and Instructions”: https://superiorcourt.maricopa.gov/media/3474/gnpoa_rev1z.pdf

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This website has been prepared for general information purposes only. The information on this website is not legal advice. Legal advice is dependent upon the specific circumstances of each situation. Also, the law may vary from state-to-state or county-to-county, so that some information in this website may not be correct for your situation. Finally, the information contained on this website is not guaranteed to be up to date. Therefore, the information contained in this website cannot replace the advice of competent legal counsel licensed in your jurisdiction.

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