Selecting an Agent

Jan 1, 2019

Choosing the right Agent under a Power of Attorney is one of the most important choices. This article discusses the qualities of an ideal Agent and qualities to avoid in selecting an Agent. Read on to learn more.

 

Courtesy of Hall & Wylkan, Certified Elder Law Attorneys

By:  Stephen C. Hartnett, J.D., LL.M.
Director of Education
American Academy of Estate Planning Attorneys, Inc.

A Secret Agent may be very important to protecting the nation. Your Agent is just as important for your protection. An Agent is the person who makes financial decisions for you under a Financial Power of Attorney or makes medical decisions for you under a Health Care Power of Attorney. The Agent under your Financial Power of Attorney may act for you when you aren’t able to act for yourself, for example when you lack capacity. This is called a “springing power.” Alternatively, you also could allow your Agent to act for you under the Financial Power of Attorney even when you’re able to act for yourself. This is called an “immediate power.”

For example, let’s say your daughter is going to be studying in Europe for the school year and traveling the summers before and after her studies. She may want you to sell her car and manage her financial matters while she’s away. So, she could name you as her immediate Agent under a Financial Power of Attorney. As her Agent, you would have the power to sell her car and manage her financial affairs in her absence.

You can appoint someone as Agent under a Health Care Power of Attorney. Sometimes a Health Care Power of Attorney is included in a document called an Advance Health Care Directive. In such a document, you’re appointing someone to make medical decisions for you when you’re not able to make them for yourself. With the Advance Health Care Directive, you’re also expressing desires regarding end-of-life decisions. In other words, you’re expressing whether you wish to be kept alive if there’s no reasonable hope for your recovery.

Good Agents have some important qualities. The Agents under either type of power of attorney should be reliable and they should put your interests ahead of their own.

Of course, for an Agent under a Financial Power, it would be especially beneficial if they had some knowledge of financial affairs, though by no means is that the most important quality. For an Agent under a Health Care Power, it would best if they had some knowledge of medical issues, or at least if they weren’t squeamish about such things.

For Agents under either type of power of attorney, they should share your philosophy or at least be willing to abide by your philosophy when exercising their duties as your Agent.

For example, let’s say you appoint your son as your agent under your Financial Power of Attorney. Your son is quite astute in business but he’s a risk taker. He knows you’re quite conservative in your financial dealings. He should be willing to manage your financial affairs using your conservative approach, rather than his riskier approach. If he won’t do that, it’s likely someone else would be a better choice.

Similarly, the person you appoint as Agent under your Health Care Power of Attorney should be willing to abide by and enforce your decisions regarding end-of-life decisions, even if they might make different choices for themselves.

Agents are perhaps the most important people in our legal lives. They step in and make decisions for us when we’re unable to act for ourselves. It’s critical to take the time to choose wisely when selecting an Agent. You should pick the person who is best for the task. That person may or may not be your oldest child or even your spouse. Once you’ve chosen the right person to act as your Agent, then you can rest easier knowing they can make decisions for you in the event something happens to you.

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