Reed: Co-agents in powers of attorney: Good or bad idea?
Thomas is a widower who is getting his affairs in order. He has had his attorney draft a will, a Statutory Durable Power of Attorney (SDPOA), a Medical Power of Attorney (MEDPOA) and a Medical Directive (MED DIR.). He wishes to name his two children, Jan and Jason, as co-agents on both his powers of attorney. Is that a good idea?
Cons of naming co-agents in a SDPOA?
Thomas is afraid it will hurt the feelings of the unnamed child if he names just one as agent. Although this motivation is common, there are caveats to naming co-agents.
Thomas may believe that Jan and Jason will work together well without conflicts taking actions regarding his financial affairs. Experience has shown that principles are not always able to predict whether their co-agents will conflict.
Additionally, counsel for financial institutions never want to choose between agents when conflict arises. This situation puts the financial institution in an awkward position. Consequently, the bank or brokerage company may refuse to take any action until the conflict is resolved.
The better practice for those in Thomas’ situation is to have a conversation with the children, coming to an agreement on the one best positioned to act as a single agent. Nothing prevents the named agent from consulting with his or her siblings before taking significant actions. In most instances, taking this approach takes care of hurt feelings. It also avoids an outside party’s having to choose the “better” agent, something that a financial institution never wants to do.
Co-agents in a MED POA
One way to avoid conflict between co-agents with a MED POA is to have a discussion with the loved ones regarding exactly what medical decisions the principle would make if he or she were competent. Better yet, the principle can put these preferences in writing and provide a copy to each family member. Spouses and children are usually reluctant to make medical decisions independent of what they know the spouse or parent desires.
Plan so you don’t put them in that situation.
Sandra W. Reed practices Elder Law in Somervell County, handling probating of estates, drafting of wills, trusts, powers of attorney and deeds as well as estate and Medicaid planning. She lives on beautiful Chalk Mountain and can be reached at 254.797.0211; 817.946.2809 or at email@example.com.