Question: When my mom went to see the attorney to prepare legal docs, the attorney asked, "who do you want as POA?" and mom answered, "my son and daughter."; So, the attorney prepared the POA for son AND daughter to be POA jointly, and EVERYTHING required both our signatures. It made things very difficult for us because by the time we needed to use the POA, my brother lived in North Carolina and my mom and I were in Ft. Lauderdale. We were blessed -- we got along and there were never any disagreements with any of our siblings about our mom’s care. It was the inconvenience of geography. How could we have avoided this situation?
Response: It often makes sense to appoint two agents (also called “attorneys in fact”) on a durable power of attorney so that they can share both the responsibility for decisions and the often time-consuming tasks involved stepping in for someone else. These can often require going physically to banks and other financial institutions to set up or change accounts.
The problem that you encountered can usually be avoided by using the word “or” instead of “and,” or adding the words “jointly and severally.” We generally use the latter solution when we prepare powers of attorney in our office. In your mother’s case, the power of attorney would read, “I appoint my son and daughter, jointly and severally, to serve as my agent . . .”
You comment that, fortunately, you and your brother, as well as your other siblings, never had disagreements about your mother’s care. This raises the issue of what happens when two agents under a durable power of attorney do disagree on a decision. While the document may permit them each to act independently of the other, meaning either can sign checks and take other financial and legal actions, they must still consult and make decisions together. If they disagree, neither should take any steps to implement their point of view until they have resolved their differences.
This can be an argument both for and against naming only a single agent under a durable power of attorney. On the one hand, naming more than one can cause difficulties that would not exist if there were only one agent named who could act on their own. On the other hand, it requires consultation and prevents the agent from acting unilaterally without discussing their decisions or sharing information with other family members. In rare instances, clients require their agents to act together with both signing all documents to make sure neither takes steps on their own.
Finally, while there are a lot of benefits to naming two agents on a durable power of attorney, we counsel our clients against naming more than two. Having three or more greatly increases both the likelihood that disagreements will develop and the level of communication required. Instead of agents A and B having to consult and keep one another informed, A, B and C must all communicate. If they can’t all meet together, A might have to talk with B, who then talks with C, who finally gets back to A, who then might have to check with B. And sometimes, even if the document permits any of the agents to act, financial institutions require the signatures of all agents. More than two agents multiplies the possibility that one is unavailable at any particular time.
Harry S. Margolis practices elder law, estate and special needs planning at Margolis Bloom & D’Agostino in Wellesley, Massachusetts, and a Fellow of FreeWill.com. He is author of The Baby Boomers Guide to Trusts: Your All-Purpose Estate Planning Tool and answers consumer questions about estate planning issues at www.AskHarry.info. Please post your estate planning questions there.
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