Questions & Answers

I appreciate your parent's desire to be fair. Fairness, however, has no place in powers of attorney (POA). Your parent needs to identify the sibling that can best represent the parent's interests when the parent cannot act for him or herself. That is the function of an agent under a POA. Your parent is suggesting the creation of co-agents under the POA, and I would not recommend it. Ever. The best way to disrupt family harmony is to name co-agents to a POA. Family crises can bring out the worst in people, and siblings can end up fighting or working at cross-purposes instead of working together. Because the potential for problems is so great, I actually know attorneys that will not draft powers of attorney with co-agents. I do recommend that your parent select successor agents under the POA. Thus, if person A is no longer able or willing to act under the POA, then person B is the agent. If person B can no longer act, then person C becomes agent. Without successor agents, if the parent becomes incapacitated, then a sibling may have to go to court and obtain a guardianship over the parent's person or property. When selecting an agent under a POA, people often simply select their oldest child as their agent. Speaking as an oldest child, while these children may be excellent agents, there are other factors that need to be considered. With respect to a POA for healthcare, proximity is an important factor. After all, in an emergency, a nearby sibling is most likely to be available to oversee the parent's care. However, sometimes proximity is not enough. If the nearby sibling travels extensively, she may not be the best choice. If the parent believes in traditional medicine and the sibling only uses holistic medicines, then the agent may not carry out the parent's wishes. Likewise, if sibling has drug or alcohol problems, passes out at the thought of bodily fluids, or has her own significant medical problems, the parent may want to consider selecting another sibling as an agent and possibly moving closer to that agent. Because of technology, a financial power of attorney can be handled by a sibling who lives in a different city. The agent simply handles the transactions by phone, email, or internet login, with an occasional face-to-face meeting. Because location is not as important, the parent should consider which sibling is the most fiscally responsible when selecting this agent. Again, a child with addiction problems is not the best choice for an agent. Neither is a child with multiple bankruptcies or significant debt problems of her own (the temptation to borrow money from Mom and repay her later is simply too great). I probably would not recommend the agent live halfway around the world, simply because the difference in time zones will make the job more difficult. An estate planning or elder law attorney should be able to draft the POAs for you and help your parent identify who should serve as the agent. Good luck to you and your family.