Power of attorney come in different shapes and sizes, each with its own purpose and level of authority. Standard powers of attorney terminate when the person executing it has become mentally incapacitated. A durable power of attorney, on the other hand, remains in effect even after incapacity. The most common types of durable power of attorney are those that deal with finances and medical care.
In California, an “agent,” also referred to as “attorney-in-fact,” is the person chosen to step into your shoes and make legal decisions on your behalf in the same way that you would if you were still able to. Depending on the type of power of attorney you are executing, there are certain limitations on who can act as your agent.
What should I consider when choosing an agent?
The important thing to remember is that your agent will have complete legal authority to act on your behalf. So, it is critical that you choose someone trustworthy and whom you are certain will act only in your best interests. You should be confident that you can trust this person with your important financial or legal affairs. Consider how he or she manages their own affairs. Is that person responsible when it comes to their own finances?
You can always choose a lawyer or accountant, but they normally charge a fee. Family members will usually be willing to act as your agent without a fee. No matter who you ultimately choose, it is a good idea to discuss your decision with them ahead of time and make sure they agree to serve as your agent, before you officially make that appointment. The good news is, if a conflict of interest ever arises or you become concerned about your agent’s trustworthiness, you can revoke the agent’s authority in writing and create a new power of attorney naming another agent.
Can I appoint more than one agent?
You can appoint co-agents who will be expected to serve together on equal footing. You can also appoint successive agents, in the event the first agent becomes unable to continue the job. However, if you appoint co-agents, there is always the possibility for confusion or conflict. For example, your health care provider may be able to reach only one of your agents in the event of an emergency, or the agents might not agree about how to handle your affairs. This situation could potentially cause delays and disrupt the handling of your affairs.
Drafting this important estate planning tool will provide a great comfort to you and your family. Choosing the proper agent is an important decision to make. So, consult with a California estate planning attorney to assist you in making the best decision for you and your family.