The common estate planning documents that everyone should have are a financial power of attorney, an advanced healthcare directive, and a last will and testament. Each of these documents requires the client to name someone to serve in the role of agent or executor; essentially, the person who will handle the affairs of the client if the client were to become disabled or to handle the client’s estate after his death.
Many clients who have more than one child want to name two or more of their children to serve as their agent or executor at the same time, called a co-agent or co-executors. The concept of co-agents sounds good but is often problematic in practice.
More often than not, clients want to name co-agents because they don’t want to upset any of their children. They believe that by naming their children as co-agents, they aren’t singling out one of their children for special treatment. They also believe that their children can split the work so no one child is overly burdened.
The reality is that naming the children as co-agents can be problematic. With an advanced healthcare directive, the law does not permit co-agents. The law only permits one agent to serve at a time, so if you name co-agents you could have a document that isn’t enforceable. If the doctor or hospital refused to honor the document, the family might have a difficult time enforcing the document because the law does not permit co-agents.
With a financial power of attorney, the law does permit you to name co-agents, but just because the law permits something doesn’t make doing that thing the right decision. I have found that banks often object to honoring a power of attorney that names co-agents.
Personally, I can understand why banks raise these objections. Say, agent #1 makes a decision and the bank honors that decision. Assume that the next day agent #2 comes to the bank and learns about the decision agent #1 made that the bank honored. Agent #2 objects to the decision and claims that the bank never should have honored the decision without his knowledge and consent.
Agent #2 may be incorrect in his assertions, but the bank still has to deal with his objections. Why would the bank want to put itself in this position? The bank could say that both agents have to agree to every decision, but then the bank has to hope that the clerks at every bank branch understand this requirement and obtain the consent of both agents. Obviously, given how many branches banks have, there is a lot of room for error in that procedure.
Furthermore, once you start going down the slippery slope of naming co-agents, where does it end. If you only have two children, then obviously you could name both of your children as co-agents to prevent either child from being offended. But what if you have three children, four children? Do you name all of the children as co-agents so that no one child feels slighted?
In a Will, a client could name two or more children to serve as co-executors; however, co-executors have to take all actions together. So, naming co-executors does not make it easier for the children. The children cannot divide up the work so that the workload is divided. Instead, you are setting up a situation where all of the co-executors have to perform all of the actions of the executor together. What if one child lives in New Jersey and the other child lives in California and the bank asks to see both children? Working together on everything can be like running in a three-legged race.
I know that choosing one child over the others is difficult, but I recommend that clients make the tough decision. In the end, by making that tough decision, you are developing a plan that will actually work.