Legal Question in Wills and Trusts in Arizona

my domestic partner of 9 yrs. had a stroke and is unable to speak or write at this time. he had no living will or any will for that matter . He has an ex wife with 2 adult children and also an older daughter out of state who still has not been notified of his condition because I'm not sure what her name is or exact location. he was in contact with her but i couldn't find her phone number. And he has an older sister who was notified who came down for a few days when he first had stroke. the exwife,daughter,sister, and cousin told me to leave the room where my partner was, and said that it was a family matter, then they told me that the 22 yr. old daughter had power of attorney. since then she has forbid myself and all of his close friends from seeing him and given any information on how he is doing at all. I have also been my partners care giver as well as partner and have not been apart from him, the last day i spent with him he was making progress and was able to tell me (I love you) i spent everyday and night with him at hospital. the daughter also locked me out of the apartment we shared because I was listed as a resident rather than tenant on lease, because my partner was solely responsible for rent. They removed (the daughter and exwife) all my personal belongings as well as my son's things ( who was visiting) claiming they were coming for my partners things that they needed. yet they didn't remove any of his things. the next day they locked me out. when i reported our things stolen the police would only make an incident report because the daughter claims she has power of attorney but no one has seen any paperwork she has since then constantly sending me harrassing text's. i was advised by a volunteer lawyer to check out the probate laws and have a judge decide whether she is competent to be power of attorney. my domestic partner was unable to speak or write at the time she was elected by 3 members herself included to have this position. the oldest son and daughter were not informed of this family meeting. wayne (my partner) has no idea why none of his friends or myself have stopped coming to see him.this has to be effecting his recovery! they don't visit him everyday and would not even known he had the stroke if i didn't call and let them know! I was the one that called 911 and saved his life. is there anyway someone a doctor or nurse that could ask him if this is what he wants. He WAS able to understand what was being said the last day i was able to be with him and it's been almost 2 weeks now.

Asked on 2/22/13, 9:36 am

2 Answers from Attorneys

Frank Waters Frank T. Waters, Attorney at Law, PLLC

I dealt with this a few years ago, and the companion of 30 years was excluded by estranged family. The injured person recovered, and I met them as provisions were made for next time. There are only two real ways to provide rights to significant others...first, an advance power of attorney. Since Wayne cannot do that now it is not an option, but if he recovers that would solve all the current problems for a future event. The other option is a guardianship. If you file court papers for an emergency guardianship you can propose yourself as his guardian. However, direct family has priority so the Court would have to be convinced they were unsuitable as guardians- this is unlikely. Also, if his daughter has a Power of Attorney, she'll provide that to the Court and the Court will assume that Wayne chose her to be his Power of Attorney/Guardian. I'm sorry I cannot give you a better answer, but non-family members have no rights in this matter unless they have a Power of Attorney in advance.

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Answered on 2/22/13, 9:55 am

Donald Scher Donald T. Scher & Associates, P.C.

Your ability to act under these circumstances depends upon Wayne's mental capacity. Just because he had a stroke, does not automatically mean that he lacks sufficient mental capacity to appoint you as his agent under his power of attorney. He needs to be capable of knowing who he is, where he is, what his estate constitutes, and who his heirs at law are, and then be able to express his wishes and make informed decisions about what he wants and who is to make decisions for him, even though he may be incapacitated in the future.

If the "daughter" has a valid DURABLE power of attorney, she may have legal authority to do what she is doing, but I don't see how she had any authority to put you out of the apartment. If she cannot show you the power of attorney document, then she doesn't have one, and if she does show you one, get a copy so that it can be determined if it is valid. Either way, you should go to the probate division of the Maricopa County Superior Court and petition for appointment as his guardian and conservator. There is a procedure to seek emergency (immediate) appointment, pending your permanent appointment. A daughter (by blood or adoption) has priority for appointment, however, the court is not bound by that and will decide who is the best person to act for Wayne, the priority can be overcome by demonstrating that you are the best person to take care of Wayne, ie. you will not separate him from his friends, and that you are the one who will act solely in his best interests.

You can go to the self service center of the court and get instructions and forms to do this, however, you will be well advised to retain an attorney to lead you through this process and make sure that it is done correctly. It is a costly process, however, Wayne can reimburse you for the costs, expenses and fees, once you are appointed by the court. Even if you are not appointed, you can be reimbursed for the costs and fees incurred, if the court so orders upon finding that your actions benefited Wayne, as I think this is clearly the case and that you are trying to protect him. If you want to discuss this further, I am available to meet with you for a consultation (1-2 hours) for a fixed fee.

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Answered on 2/22/13, 1:39 pm

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