94 Planning Ahead Sole vs. Joint Agents
94
lanning Ahead
Many businesses prefer and even insist on having one person they can look to for decisions if the principal cannot act. For that reason, it may be best to appoint only one person as the Agent or Attorney-in-Fact), with an alternate appointed in case the fi rst named person is unable to act. If the principal has only one person that (s)he trusts completely, then it is better to appoint that person as sole agent, rather than appoint an alternate who may fi nd the opportunity too tempting, or who may be honest but poor at handling business. It is possible to appoint joint agents
if there are two trustworthy, competent candidates who can work together. It is wise to include some mechanism for prompt resolution of any disagreements if they arise. This is the situation in which third parties do not want to be caught. (Never appoint more than two agents.)
Special Considerations It is also wise to include in springing
powers some trigger that will determine when incapacity occurs. This could be a letter from your treating physician, letters from both your doctor and attorney, or from someone else that you trust.
It is best not to appoint someone whose
fi nancial circumstances are less solid than your own. Remember that appointing someone to act for you is not “an honor”, but a responsibility. If you have several family members who might think they should be appointed, it may be best for you or your attorney to contact all of them at the time the appointment is made. You can explain that for reasons having nothing to do with affection or esteem, the person you appointed is the one you feel will best be able to carry out this responsibility and that you hope and expect all of the family will cooperate. If there is some sound reason for objecting to the appointment, other family members will
Senior Resource Directory 2017-2018
have an opportunity to voice their concerns then, while you are able to consider and address them.
Do not allow yourself to get bogged down in whether you might hurt someone’s feelings. Appointing an agent is a business decision, not an expression of affection. Do not appoint the oldest child, or the one with a college degree, or the only male, for those reasons only. Appoint the person who manages his/her own business well and whom you can reasonably expect to do the same for you, and do it willingly.
What should be in the DPOA?
A DPOA should be more than a form; it should meet the particular needs of the person executing it. Three or four pages may suffi ce for someone whose business matters are simple; ten pages might be inadequate for someone whose fi nancial affairs are more complicated. Even simple DPOAs should include a provision to make bank deposits and write checks; pay, negotiate or compromise debts; collect amounts owed; manage personal and real property; enter any bank deposit box, and other basic management tasks. If an agent is to be able to sell real property, that must be specifi ed in the document. Also, an agent under a power of attorney cannot benefi t him/herself unless the authority to do so is spelled out. If a principal owns stocks or bonds, there should be a provision about managing them.
A complete list of all the provisions that should be included in a good durable power of attorney document is beyond the scope of this article. It is enough to say that one or two general paragraphs are not suffi cient, and you should seek knowledgeable legal advice to draft a document that is right for your circumstances. If you have an old Durable Power of Attorney, even if it is a good one, you might want to update it to include the new “HIPAA” medical privacy regulations. A form purchased at an offi ce supply
store or borrowed from a friend may meet your
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