The vast majority of powers of attorney fall in two categories: those for financial decisions and those for healthcare decisions. Because both types grant very important powers, family members are commonly called upon to assume the position of agent if something happens to the person who granted the power that renders the person legally incapable of making his or her own decisions. There are a number of potential problems with making a family member your agent for your power of attorney.
Implementing the Powers
Family members are usually willing to act as an agent under a loved one's power of attorney but may have difficulty implementing those powers when necessary. This concern arises more often with a power of attorney for finances than for healthcare. If a family member is chosen to act as agent, a family member with knowledge of financing should be chosen, if possible, to avoid the potential cost of hiring a financial expert.
Choosing an agent under a power of attorney is perhaps one of the most important decisions when creating the power. Parents often choose their children to act as agents. The difficulty arises when a person has an even number of children. For example, if a person has two children and designates both as agents, a conflict exists if one child believes that a power should be exercised but the other child does not agree. In that case, either the power of attorney cannot be used or a judge will have to make the decision. The alternative is to choose only an odd number of agents. However, designating one child to act as agent but not another can cause the child to resent his or her parent.
Risk of Abuse
An agent under a power of attorney is held to a very high legal standard of responsibility. This means that the agent must always act in the best interest of the person who granted the power. When a person executes a power of attorney for financial management, the power is usually very broad and allows the agent to access all of the person's financial accounts. There exists the possibility that an agent may withdraw funds from those accounts for his or her own purposes. With respect to family members, the agent may believe that one family member may not alert the authorities or sue to recover improperly withdrawn funds because of the family connection.
If a person chooses someone other than a family member as the agent under the power of attorney, the person executing the power should make his or her family members aware of what is included in the power of attorney. Family members, who may know the person better than a non-family member, may believe that they know what is best once the person who executed the power no longer has the capacity to make his or her own decisions. In this situation, a conflict can exist between the family members and the agent. If the agent acts in accordance with the power of attorney regardless of the wishes of the family members, those family members could bring a court action and attempt to invalidate the power of attorney. Explaining the power of attorney to family members ahead of time can make your wishes clear to them and avoid potential problems later.
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