When it comes to Estate Planning, you have a lot of decisions to make. The obvious ones are what are you going to do with your assets and the disposition of your remains when you die. Another major part of the decisions will revolve around who you are going to select as your agents to carry out your wishes when you are incapacitated or after you are gone. As I have counseled clients on this issue, there are many considerations that we need to explore together.

Considerations Common to All Agents

Trustworthy

First and most important, you should choose an agent that you trust. You are empowering someone to act for and represent you and your wishes. If you empower someone who will not fill the role with integrity, they can do irreparable damage in a short amount of time. Whether that is declining life support too early as a Health Care Agent; siphoning off assets with the durable power of attorney; or not distributing your estate as directed in a will or trust, self-serving agents will cause irreversible damage. It is better to have no agent that an agent that isn’t trustworthy.

Capable, Organized, Available

As stated above, agents are empowered with your authority. Often, an agent is called upon to act. They need to be able to discern between critical, important, or even urgent actions. Agents will rely on their life experience to make decisions on your behalf. If their experience is limited or they have not had a track record of successfully dealing with their own life then they may not be equipped to do so for another. Additionally, they will be dealing with third parties and fact-finding on your behalf while maintaining their own life. Because of the increased workload, it is important that your agent is organized.

It is recommended that your agent is readily available. Although the ability to be “on-site” is usually better than not, the need for an “on-site” agent is decreasing because of the internet’s increasing ability to facilitate remote operations. If the agent is not familiar with these operations or is frequently unavailable, it will be very difficult for them to carry out your wishes despite their intentions or integrity.

Ability and Willingness to Communicate with Family

More often than not, my clients will designate one of their children as successor agents to their spouse (if married). In the case of incapacity or after your death, they will control the flow of information concerning what is happening with you and/or your estate to all other interested parties. I have had many consults with disgruntled heirs or children because of the lack of communication from the agent. For the most part, these contentions could have been completely avoided if the agent had been freely giving updates and in regular communication with the other interested parties.

Co-Agents or One at a Time

There are many considerations when deciding to appoint co-agents or a single agent. Parents fret about being perceived as favoring one child over another when they decide to appoint only one agent rather than all their children as co-agents. They consider that by choosing one agent to serve at a time, their children view it as a reflection of the hierarchy the children’s abilities or the love and trust they have for that child. The simple facts are, one person can make a decision faster than multiple people can, but committees tend to make better decisions than sole decision makers. It is also true, that people behave more honestly if they believe others can see what they are doing. A second obvious consideration with co-agents is the relationship among the co-agents. Parents are usually acutely aware the family dynamics and relationships between potential agents and the potential for conflict or disagreement.

The practical import of co-agents or agents serving one at a time is that when dealing with third-parties (banks, hospitals, etc.), the third parties would prefer to deal with one person. A requirement to get multiple signatures can be burdensome to the agents and the third parties. Additionally, they do not want to get into a situation where one agent directs them to do X while another agent directs them to do Y (countermanagement). Attorneys have reported (not my experience), that some banks will not honor a durable power of attorney with co-agents because they are fearful of countermanagement. The logistics of getting multiple signatures is getting easier, but multiple co-agents requires more time and planning.

The decision-making process by deliberation among the co-agents also takes more time. This may be compounded by the possibility of co-agents remaining in disagreement while an urgent decision passes. For example, take a scenario where someone is on life support and co-agents disagree about whether to pull the plug. Despite detailed instructions in an Advance Health Care Directive, hospitals have required a court tell them which agent to listen to while the patient continues to suffer.

Specific Guidance for each Instrument

Durable Power of Attorney?

Co-agents can be helpful because there could be a lot of work involved in managing your financial affairs; however, if co-agents are selected, we encourage giving both independent authority to act so that two signatures aren’t required. We also encourage giving authority immediately but withholding the document until it is needed.

Advance Health Care Directive

Because of the limited time and availability of Doctors, we encourage that the health care agent serve one at a time. We also encourage the inclusion of language that encourages the agent to consult with the family prior to making decisions. We also include language in the health care directive that in emergency situations, alternate agents can be consulted with when the primary agent is unavailable.

Successor Trustees and Personal Representatives

Agents for these roles are difficult to apply general advice to because our advice is influenced so much by family dynamics. As a general rule, if there are family members serving in this role, there should be no more than three co-agents and usually no more than two. There is a lot of work involved in this role and the agent’s ability and willingness to communicate to the other parties is very important.