Feb 14, 2014

Your agent under your durable power of attorney: are two heads better than one?

They say two heads are better than one. But when it comes to naming agents under your Florida Property Durable Power of Attorney, that's not's necessary so.

Your Durable Power of Attorney gives someone the legal authority to manage your financial affairs on your behalf. At first blush, it seems reasonable to name multiple agents - two or more adult children, say - to serve simultaneously and to make decisions unanimously. The arrangement allows your co-agents to assist and support one another, and  serves as a checks-and-balances system. A good choice, right? 

Well, not so fast. There is a potential downside to having co-agents who are required to make unanimous decisions. Differences of opinion are bound to arise, and if your co-agents can't work together amicably, there could be trouble. Suppose, for example, you appoint your son and daughter as co-agents. You are no longer able to manage your own affairs. You move into an assisted living facility and your house is sitting vacant. Your daughter wants to sell the house. Your son does not. They are both well-meaning, and hopefully they will be able to work through the issue and agree on what to do. But if they cannot, you have a stalemate - worse yet, you could have created a sibling feud.

If you lack confidence that your children can act together, or if you believe it would be cumbersome to require them to act unanimously, you should name one person as the agent and another as the backup agent in the event the first one cannot or will not serve. 

If on the other hand you believe your agents can work together and cooperate even when they may not see eye to eye, and  you also believe none of them are potential "loose cannons," you can allow them to act independent of one another. In fact, the revised Durable Property Power of Attorney law of October 1, 2011, assumes that when there are multiple agents, any of the agents can act alone. Most financial institutions do not like dealing with co-agents; they prefer to deal with one, and will only permit an account to be opened on that basis. They want one person signing checks. Of course, naming independent multiple agents is not necessarily a panacea, either, as one agent may not like what the other agent is doing. It could create chaos. 

So what's the solution? For most of my clients, particularly those who are not certain that their multiple agents would be able to resolve differences expeditiously and amicably, I recommend naming one agent under their Durable Power of Attorney, and then successor agents. For example, you would appoint your daughter as the agent, and then, if she could not serve, your son would step in as successor agent.

One important caveat: The discussion above applies ONLY to your Durable Property Power of Attorney, NOT your Florida Health Care Power of Attorney. For health care, it is generally best to name one primary agent and a backup if that agent is unavailable or unwilling to act. If you decide to name multiple health care decision-makers, it is almost always better to give each of them the authority to act alone, because medical decisions often must be made quickly, in days or even hours. It is impractical to require two or more agents to communicate and come to a unanimous decision when time is of the essence.

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