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Who Should Be the Agent of My Power of Attorney?

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Choose the agent you name in your power of attorney carefully. You should trust her to act in your best interests at all times.

It’s important to understand what a power of attorney is, how it factors into estate planning, and how sibling roles can differ and be shared at the same time.

Considerable’s recent article, “How to assign power of attorney without sparking a family feud,” gives us some idea how the power of attorney can work within a family and among siblings.

A power of attorney (POA) is a legal document that allows one person (the agent) to act on behalf of another (the principal), usually when that person is unable to make decisions for themselves. It’s probably the most important estate planning document an adult should have as it’s the only way to avoid guardianship court.

Many people confuse the role of the agent of a power of attorney with the role of the executor of an estate. A power of attorney is only in effect while the person who has granted the authority is alive. Once that person dies, that document terminates and the executor of the estate assumes the responsibility of seeing the estate through the probate process. They’re two very different roles, but they can be held by the same person.

There are also different types of powers of attorney. The most frequently used are the general POA and the health care POA (known in Florida as a Designation of Health Care Surrogate). The general power of attorney is for the management of financial, business, legal, and private affairs. The health care power of attorney authorizes the agent to make health care-related decisions for the principal.

If a parent grants a power of attorney to one of her children, that child has the sole authority to act on behalf of the parent. The other siblings have to abide by the inherent authority of that sibling to make decisions for the parent. Additionally, the sibling named as sole agent has no legal obligation to report to the other siblings or to request their input when making decisions.

It’s also important to understand that the power of attorney is a fiduciary obligation. This means the person who holds it must act in the best interests of the principal rather than in their own interests. He or she must also comply with the state laws and the directions within the legal document. Nonetheless, things can get messy if there isn’t transparency and trust among the siblings when major decisions are being made.

Some parents opt to appoint joint agents on their power of attorney so that two siblings share the responsibility. This may decrease the potential for jealousy and mistrust within the family. However, it can also lengthen and complicate decision-making. There’s always the possibility that the siblings simply won’t agree on an issue, and as a result, an important decision could remain stuck in neutral indefinitely.

Whether one or more people are named as agents on a power of attorney, communication and transparency are the key factors in avoiding painful situations in the family. Another alternative is to name an independent person or professional fiduciary to act as the agent. That may be the best way to prevent family conflict and provide peace of mind when a parent needs help managing his or her affairs.

Reference: Considerable (July 10, 2019) “How to assign power of attorney without sparking a family feud”

Other articles you may find interesting:

Naming a Child as Successor Trustee?

Why is an Advance Directive so Important with Dementia?