Every day I meet with clients who are interested in having me drafting the three essential estate planning documents for them–a last will and testament, a financial power of attorney, and an advanced health care directive or living will. Part of each of these documents is nominating a surrogate decision maker, someone who will make decisions for the client if the client is no longer capable of making decisions for himself because of death or disability.
In most cases, the client will name a family member to make decisions for him if he is no longer capable of making those decisions for himself. Sometimes, a client will name a friend or a professional, such as an attorney or accountant.
When dealing with a married couple, the one spouse almost inevitably names the other spouse to make decisions for him, unless the other spouse has health issues that prevent that spouse from carrying out the functions of a surrogate decision maker, such as Alzheimer’s disease. For some clients, choosing one person to serve as their surrogate decision maker is a difficult choice.
The client might be a married couple who needs to name a back up executor or agent or a single client who needs to name their primary executor or agent. When it comes to choosing one of his children to make decisions for him, the client might be torn. Oftentimes, the client’s consternation stems more from a fear of hurting one of his children’s feelings than a desire to name multiple agents.
The client might believe that if he chooses one child as his executor, his other children will be upset by his choice. Perhaps the client is concerned with how his children will think of him given his choice or the client might be concerned with how the children will get along after his choice becomes known.
In some instance, the client believes that by naming more than one executor or financial/health care agent, he is putting in place a better plan than if he only named one child. As the old adage goes, the client believes that two heads are better than one.
Estate planning documents belong to the client. These documents represent the client’s plans, not another family member’s plan and not my plan. For instance, they call a last will and testament a “Will,” because the document represents the client’s free will.
As an estate planning attorney, I do not tell the client how to draft his documents. I merely make suggestions and, in the end, implement the intentions of the client into the documents that I draft for the client. Ultimately, how a document is draft is up to the client, not me.
With that said, as a general rule, I do not like co-executors or co-agents for financial or healthcare decisions. I do not believe that two heads are better than one. I believe that naming two people to make the same decisions is more likely to lead to conflict than naming one person. It certainly is not going to make things easier, because it is always easier for one person to be able to make decisions without having to consult with another person before she makes those decisions.
Now, with that said, tomorrow I may meet with a client for whom I believe naming co-executors or co-agents is wholly appropriate. Everyone’s situation is different and for different reasons things might work better for a given client.
Also, as stated, these documents should reflect the client’s wishes, not mine. If naming co-executors makes the client feel better, than the client should name co-executors. Sure, having co-executors will be more cumbersome, since they both have to make all decisions. Sure, it is possible that naming co-executors could lead to conflicting decisions and general conflict, but if that’s what the client wants, then that is what the client should have.
With estate planning documents, there is no one-size-fits-all document.