In your durable power of attorney, you can name one or more agents (technically called “attorneys in fact”) to step in and act for you on legal and financial matters in the event of incapacity. This can be your most important estate planning instrument and can save your family a lot of trouble and expense if you were injured, became ill, or were to suffer from dementia.
While everyone should have a durable power of attorney if they have someone to name who they trust, who to name and whether to name more than one agent can be difficult questions to answer.
One or More Agents?
An attorney recently posted the following inquiry on a legal listserv, giving rise to a spirited discussion about how many agents to appoint on a durable power of attorney:
Client, age 88, has two daughters, both competent. Client proposed daughter A hold the PoA, and daughter B as the alternate (triggered per the form by death, resignation, etc., of daughter A). Daughter B says A is away from time to time, and so they should jointly hold the power. I’ll check with the client, but assume she’s indifferent. So – do I create one PoA with two joint holders, or two separate PoA’s naming A on one and B on the other?
As a starting point, clients should name people they trust—agents must be organized and financially responsible. Also, if possible, they should choose agents who are trusted by others in the family and who will communicate well with them. We’ve often seen situations where agents are doing a good job, but their lack of communication with other family members leads to suspicions and accusations of misconduct.
Many clients are concerned that if they name one child on a power of attorney and not others, that this will seem like favoritism since the parent, in effect, is saying that one daughter or son is more trustworthy and fiscally responsible than the others. So, they ask about naming more than one child as agent. Doing so can also solve some of the communication issues, since all those named will have access to financial accounts and information, and the agents should coordinate their actions. It’s also less likely that the appointed agent will abuse her power if she knows there’s oversight from others.
But appointing more than one agent raises some questions. First, is there a limit on the number? We generally prefer no more than two agents. Otherwise, the need to make decisions together can become cumbersome. However, some clients with three children don’t want to leave one out and do appoint all three.
Second, should the agents be able to act independently or should they be required to act together at all times? Unless the client has real concerns about his agents acting unilaterally without consulting one another, we strongly recommend that the durable power of attorney permit them to act on their own. It will be much more efficient if either agent can write checks, deal with financial institutions, and sign contracts. The necessity of two signatures on every check and document will make it difficult for the agents get anything done, especially if one or both of them travel extensively. On the other hand, it does provide a strong system of checks and balances.
This discussion anticipates that there is no problem in naming more than one agent under a durable power of attorney. However, the responses to the inquiry above revealed a difference of opinion among attorneys on this issue, with some stating that financial institutions will not accept powers of attorney naming more than one agent. Here’s what one attorney had to say:
My experience lately has been that the institutions reviewing the DPOAs have been reluctant to accept a document naming two persons as co-AIFs since one may countermand the other. And, it’s also not clear in the law that you can have two DPOAs executed consecutively to two different people without voiding the first; nor that having two DPOAs in place might not also present a countermanding issue.
Our experience has been somewhat different. I asked the other attorneys in our office if they had run into the problem with documents with two agents being rejected by financial institutions and no one had.
One or More Durable Powers of Attorney?
The listserv exchange also included a discussion of the client executing two separate durable powers of attorney, one for each child, rather than naming both on the same document. We have always been uncomfortable with this practice. There is the issue of one countermanding the other, but also the problem of communication and lack of transparency. If daughter A goes to bank X with her power of attorney to conduct financial transactions, won’t bank X be surprised and confused when daughter B shows up with her totally separate document?
What About Successor Agents?
Successor agents can also be problematic, since the bank is going to want to have proof that the first agent cannot act—whether due to death, disability or other unavailability. It’s not always clear what evidence will be accepted as satisfactory. For instance, husband names wife as his attorney in fact and son as her alternate. Husband becomes demented. Wife acts for him under his durable power of attorney, but over time gets exhausted by everything she has to do. Son offers to step in and help out with bill paying and other financial tasks. Must wife then resign as attorney in fact for her husband? What then happens when son goes to Europe on vacation? It would be easier if both the son and wife could both act for the husband, one carrying out some tasks and the other taking on specific responsibilities as needed.
Clearly, every situation is different and requires a different solution. But here are a few rules of thumb:
Appoint someone you trust.
Consider appointing two people if that will make it easier to carry out the functions and will facilitate communication.
Provide that each agent may act independently unless you feel a real need for checks and balances.
Then execute a durable power of attorney so that one or more people will be in place if you become incapacitated due to injury or illness. This will save you and your family from considerable expense and frustration.