Our clients often have to make difficult choices when deciding who to name as their agent or agents on their durable powers of attorney. Married clients usually name each other and, if they have children, one or more as alternates. Unmarried clients or married clients whose spouses have dementia usually name children, if they have them.
Questions about choosing a durable power of attorney
But what if you don’t have children, or you don’t have children who you can trust with this responsibility? Or what if you have several children, how do you choose among them? Will picking one child over another create resentment and cause friction among your children? On the other hand, would naming several create the opportunity for continuing conflicts?
These are difficult issues, and there’s no one-size fits all solution. Appointing someone as your agent to make your financial and legal decisions if you are ever unable to do so for yourself is a great vote of confidence in that individual. But it is also a great responsibility for that individual to take on. He or she needs to have sufficient time and energy as well as capability and probity.
Here are a few rules of thumb I hope will help you make your decision:
- Only appoint people you’re confident have your interest at heart and are capable both in terms of skills and time to take on the job. Also, if possible, choose people you expect to be open and transparent with other family members. Secrecy breeds suspicion, which even if unfounded can cause lasting resentment and conflict.
- Proximity is important, but not conclusive. It will be easier for someone who lives in your community to travel to banks to be added to your accounts, to collect your mail and pay bills, and to deal directly with vendors. That said, a lot can be set up while visiting you and handled electronically afterwards.
- Consider appointing two children as co-agents. The power of attorney document should allow them to act separately so that they don’t both have to sign every document. But make sure that you are choosing two people who can and will communicate and work together. If you’re not sure they can, then just name one at a time.
- Don’t name more than two co-agents. As hard as it may be for two agents on a durable power of attorney to communicate and agree on all decisions, it’s three times as hard for three or more co-agents to do so.
- Don’t worry too much about the feelings of anyone you don’t name. It’s more important that you have an agent or agents in whom you have confidence than you appoint the wrong person in order to avoid offending anyone.
- Consider successor or alternate agents. While you may not want to hurt the feelings of one or more of your children by not naming them on your documents, and it may not work in your family to name co-agents, you can give a nod of approval to everyone by naming them as alternate or successor agents to serve in the event that the first person you name cannot serve for any reason (death, illness, military deployment, job and family commitments, etc.).
If you follow these rules of thumb, you should be able to choose the right person or people to name in your situation. If the result is you do not have any family member or close friend you feel comfortable naming, you can also name a professional, such as an attorney or accountant. This would cost more in terms of fees than naming a family member, but if it means that you’ll be protected and you’ll avoid family fights, it may well be worth the cost.
