Designating someone to act on your behalf as an agent using a power of attorney document is a serious decision. Clients typically choose a trusted family member to handle the responsibility of making health and/or financial decisions on their behalf. Aging parents often name an adult child as a power of attorney but this can be a highly contentious move when there are complicated family dynamics. Sometimes in an effort to please all family members, clients may ask us to draft their power of attorney document and name two agents to serve. We caution clients about doing this for a number of reasons.
There are several factors to consider when deciding who is best equipped to serve as an agent under a power of attorney. Trustworthiness, dependability and skill sets all come into play. Serving as a loved one’s agent under a power of attorney is not an easy or simple role.
There are two types of power of attorney forms: Healthcare Power of Attorney and Durable General Power of Attorney which covers financial matters. One option may be to designate different agents under each type based on who would serve in that role the best. It is still important to clarify to both agents that they need to work together as a team.
Another option is to name them all as consecutive agents. This means that if the primary agent is unwilling or unable to fulfill their responsibilities then the secondary agent will be able to legally step in and take over. It continues in sequence.
If you move forward and name co-agents, do so with the understanding that there are drawbacks to this approach. Co-agents have equal decision-making abilities and if they are granted joint powers then they cannot act independently and must make all decisions together. This can create serious issues if they do not get along and have trouble reaching consistent agreements. The language in this agreement has to be carefully worded for co-agents to act independently of each other and this requires an experienced estate planning attorney to be involved in the drafting of the power of attorney documents.
An agent has a legal responsibility to act in the best interest of the person they are representing. If the agent has acted illegally or unethically, then legal action may be taken, but this often causes a lot of stress within the family unit. The experienced attorneys at Stouffer Legal in the Greater Baltimore area understand the importance in learning about the family dynamics and incorporating those into the decisions. Contact their offices today to set up an appointment for comprehensive estate planning that takes into account any issues that specifically pertain to your family.
