Naming Co-Agents

I draft numerous last wills and testaments, financial powers of attorney, and advanced healthcare directives. I would say that over the course of my career, I have drafted tens of thousands of these documents.  I have met with thousands and thousands of clients and potential clients to discuss how these individuals would want their estate planning documents drafted.

One of the most common questions I hear is, “Can I name all my children as co-executors [or co-agents under the power of attorney or co-agents under the advanced health care directive]?”  Many of these individuals don’t want to offend any of their children, so they want to name all of their children as co-equal decision-makers.

As a parent, I understand the sentiment.  When my daughter asks me, “Dad, am I your favorite child?”  I don’t say, “Why yes you are, honey!”  I say, “I love all my children equally,” because that is the truth.  And people sometimes associate naming a child as executor or agent with picking one child over the other, as if the choice equates with the amount of the parent’s love for the child.  (Some people think that choosing a child for these position denotes how much they don’t love the child because they are burdening the child with a thankless job.)

The problem is, naming more than one person for any of these positions is inadvisable from a workability point of view.  The law does permit a person to name co-executors.  The law also permits a person to name co-agents under a financial power of attorney.  On the other hand, the law does not permit a person to name co-agents under an advanced healthcare directive.  Legally, you can only name a sole agent to make healthcare decisions for you, and there is wisdom in that legal constraint.

My guess is, when the advanced healthcare directive act was passed, the Legislature realized that it would be impractical for more than one person to have co-equal authority to make healthcare decisions.  What if child one said “don’t treat” and child two said “treat”?  What decision would the doctors and other healthcare professionals heed?

While the law does permit co-executors and co-agents—in my opinion—it shouldn’t.  Co-executors must do everything together.  By naming co-executors, the parent isn’t making it easier for one child because either child could carry out the duties of an executor alone.  Instead, both children may have to be present at the bank when banking transactions need to be accomplished.  Both children must make every decision together.

With financial powers of attorney, co-agents can be joint or several.  Joint agents means that both agents must agree on every decision.  Several agents means that either agent can decide without consulting the other agent.  So, unlike co-executors, co-agents under a financial power of attorney can “share the load” with either accomplishing a given task without involving the other.

The problem is, many financial institutions do not like co-agents under a power of attorney and often refuse to honor powers of attorney that are drafted in this manner.  And I don’t blame them.

What if child one transferred money out of the parent account and child two claimed that the transfer was child one embezzling money from the parent?  The bank wants to deal with one person, not two or more.

There is also the very real possibility that co-executors, co-agents may not get along.  Clients will say to me, “Our children get along splendidly,” but the problem is, the children have never had to make decisions for the parent.  For their entire lives, the parent made decisions for the child with the child having little to no influence over the decisions the parent makes.  When the parent ages and, theoretically, takes on more of a child-like position (needing help with her finances and basic activities of daily living), the children take on a role in relation to the parent that they have never had to execute before.  Also, the children are likely married and have spouses who influence their opinions and the decisions they make.

My point is, children who never had a dispute before may find themselves disputing the decisions their siblings want to make regarding your care.  If there are two children (or more) who have to make those decisions, the likelihood that there will be disagreements is even greater.  You might be creating a situation that causes tension between your children.

Finally, if you are thinking about naming two unrelated people as co-agents or co-executors, forget it.  The likelihood that there will be disputes goes through the roof.

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