Elder Law Issues

Advance directives and DNR orders confuse laypeople. Especially in Arizona, where the existence of a special kind of advance directive adds to the confusion.

We’ve written (and talked) about the Pre-Hospital Medical Care Directive before. It’s an Arizona-specific form. Most people refer to it as “the orange form.” And quite a few of them call it a DNR Order.

It’s not really a DNR, though it might get to the same result. It’s actually more like the POLST paradigm, a concept familiar to people who live and work in other states. Or at least it is more like that in its effect. The Arizona orange form is nothing like a POLST order in appearance.

Confused? Yeah, we get it. Join us for some discussion about advance directives and DNR orders. We’ll try to make it make more senes.

The Social Security Fairness Act of 2023 was, confusingly, signed into law on January 5, 2025. More confusion: what the Act did was to eliminate Social Security’s Windfall Elimination Provision. Wait — it eliminated an elimination? Yes, that’s right.

At the same time, the new law also eliminated the Government Pension Offset. The WEP and GPO, together, had reduced Social Security payments for people who had paid into both Social Security and some other pension program.

Those provisions were intended to prevent workers from qualifying for two different pension amounts — but not because they didn’t deserve the payments. In fact, they clearly DID deserve their full payment amounts.

So now a lot of our clients suddenly see an increase in their Social Security pension amounts, plus sometimes sizeable back payments. In this podcast episode, we talk about the Social Security Fairness Act and how it affects beneficiaries.

Springing vs surviving powers of attorney: what’s the difference? Which is better?

As we explain in this week’s podcast episode, there’s not really a “better” choice. Or at least, there’s not a choice that’s better for everyone.

The “springing vs surviving” debate is about whether you wish your financial power of attorney to be immediately effective (“surviving”) or want it to only become effective if/when you become incapacitated (“springing”). You need to be comfortable with your choice.

As we discuss, there’s also an intermediate option. You can make your power of attorney immediately effective, but require evidence of your incapacity for alternate agents to act. That way you can name a completely trusted individual (a spouse, perhaps) to have general access to your finances. Then you can name a backup person whose authority would only arise if they can demonstrate that you are incapacitated AND your first-choice agent is unavailable.

In any event, we suggest that your durable financial power of attorney and the related health care power of attorney may be the most important documents in your estate plan. They might even be more important than the will you thought you originally came to see us about. The powers of an agent under your power of attorney can be critical to providing for your care and your estate.

We often find ourselves advising non-citizens about the problems that might arise if they face deportation. The level of concern is particularly high right now, of course. But many of our neighbors have been living in fear and uncertainty for years or even decades.

Many non-citizens have legal status, but worry that their status might be disrupted without much (or any) notice. Others have lived with the constant threat of removal and do not have — and may not be able to qualify for — citizenship or status.

What about the non-citizen with children who are full citizens? And what about the possibility that one (or more) of those children requires full-time medical care? That’s the scenario we most often wrestle with.

So what can we suggest when advising non-citizens about their status? They may not be able to secure citizenship or even a green card. And their dependent child may require intensive care — available only from the dedicated family members whose status is uncertain.

There are a few things the non-citizen might consider. Primarily, though, our advice is to have a plan in place, and be ready to implement it even if circumstances change abruptly. And make sure there is some mechanism for child care, including medical care, in any emergency.

Kathy Kreuzer has been a primal force at Fleming & Curti, PLC, for 28 years. Last month she retired. It’s a sign of both the longevity and the flexibility of Fleming & Curti’s staff.

Kathy, our principal legal assistant for decades, was the longest-term employee in our law office. Well, not counting co-founder Robert Fleming. But even Robert only had a couple years on her. The firm started in 1994, and Kathy started working for us in 1997.

Her prior legal experience had included similar work for a long-term employer who became a judge. We were glad for his judicial selection — not incidentally because we could hire a terrific employee with demonstrated skills.

From her first day at Fleming & Curt, Kathy took charge and managed our guardianship, conservatorship and trust administration practices. Clients and colleagues came to recognize her persistence, hard work, intelligence and dedication to her work. She has truly been an extraordinary (positive) influence on our practice.

We’ve actually experienced several retirements in the past few years. It turns out that none of us are irreplaceable. But that doesn’t mean we’re all easy to replace. We’ll miss Kathy but wish her well as she tries out her next career: grandmother. And we know that our clients and colleagues will take a little while to adjust to Kathy Kreuzer’s absence.

You might have questions about choosing a fiduciary. We encourage you to think about your choices. Maybe even discuss the idea(s) with family members and others.

Wait. What are we talking about? That is, what is a fiduciary, and do I need one?

“Fiduciary” encompasses the personal representative of your estate (we used to call them “executors”). The term also covers the agents you name in your powers of attorney (financial and health care). If you’ve established a trust, the successor trustees are also fiduciaries.

The problem: being a fiduciary is not an easy job. And it’s not precisely an honor to be named. There is, however, a lot of opportunity for family discord. Choosing a fiduciary turns out to be quite a challenge.

In this podcast episode, we discuss some of the choices. You can name a family member. If you are wealthy, a bank or trust company might be interested (but not in acting as your agent — either financial or health care). Perhaps other professionals in your life (your CPA, your financial planner, your lawyer) might be a good choice.

Who knew that choosing a fiduciary was so difficult? We did. And we are eager to explain for you.

Ambiguity can be a strategic choice. Perhaps a speaker wants to leave a vague impression, offending no one. Maybe a writer hopes the reader will fill in intentional blanks.

In a will or trust, though, ambiguity is almost always a problem. When a provision can be read two (or more) different ways, disappointment and disagreement often follows.

In drafting estate planning documents, lawyers try hard to avoid any ambiguity. That’s a large part of the reason “legalese” sounds the way it does. But unintended problems often creep into estate planning documents.

“Do-it-yourself” estate planning documents are often problematic. We have seen some terrifically ambiguous phrases in wills and trusts written by the decedent. The author might have known precisely what they meant when they wrote. But the rest of us are left trying to figure out what was intended.

And how do we resolve ambiguity? By asking a judge to give direction. If everyone affected has an opportunity to weigh in, a judge might be able to reach a fair and correct decision. But at a cost, of course.

Or maybe everyone could agree. They might be able to get a portion of what they hoped for, while avoiding a total loss. That kind of settlement can make sense and save time, money and animosity. But that’s a story for another time.

We occasionally talk with clients (and others) about choosing to decline or disclaim. Why would someone choose to decline or disclaim, and what’s the difference? Those (related) questions often confuse people. In this week’s podcast episode, we try to explain why you might decline (to serve) or disclaim (an interest), and what the two words mean to lawyers.

If you are acting as personal representative of an estate, or as trustee, you might want to know how you can facilitate dispute resolution. Good news: Arizona law gives you a couple of good dispute resolution tools. Let us explain what they are and how they might help you to wrap up the trust or estate you’re administering.

If you have any interest in out-of-state real estate, it can significantly complicate your estate planning process. Why? Because one primary motivation in estate planning is to avoid probate. And real estate in two (or more) different states makes it more likely that multiple probate proceedings could be required.

So how do we deal with out-of-state real estate in planning for your estate? We often recommend that clients consider creating a trust. Usually (but not in every circumstance) that means a revocable living trust. But that’s not enough by itself.

In order to avoid probate we’re likely to recommend that even your out-of-state real estate should be transferred to your new trust. We can handle the transfer of your Arizona real property, but we’ll need to involve an attorney in the other state to handle transfer of your property in the other state(s). That means paying additional legal fees and increasing some of the complication. Of course, failure to transfer those interests exposes your estate to the very same complications, but at a more-expensive level.

Often, the interest our clients have in out-of-state real estate might be a fractional interest. They might, for example, co-own a vacation cottage along with other family members or friends. Those arrangements may also complicate your estate planning.