We’ve discussed the importance of Durable Powers of Attorneys (DPOA) before. Let’s take a moment to revisit the topic and consider who to appoint as your attorney in fact (AIF).
If you are married, the decision is frequently to appoint your spouse as your AIF. While there are certainly situations where you should not appoint your spouse, your spouse is often the person who knows you best and is most familiar with your financial situation. However, let’s consider an instance without a spouse to appoint.
You may be the blessed parent to two children. It is reasonable for you to want to treat both of your children equally. Does this mean you should appoint both as your co-AIFs? Let’s consider. If both of your children are appointed, unless your DPOA includes language indicating that each can act unilaterally, both will need to come to an agreement before they can make any action. While this may lead to better decision making, along the lines of two heads are better than one, it also can significantly slow down the process. Even if both are in agreement on a decision, such as signing a check to pay a bill, it will take both signatures to get the job done. Then add in the possibility that one disagrees with the other and you can be left with a stalemate.
Instead of automatically appointing both children, consider their personalities, strengths and weaknesses in relation to the job at hand. Is one better at managing money? Do they live in the same state as you, or each other? Do they have time to serve effectively or are they likely to let their duties lax?
A frank discussion with your children before executing your DPOA can help to alleviate hurt feelings and misunderstandings. By talking with your children, you might be surprised to learn that one has no interest in serving as an AIF. If you are choosing only one child, a family discussion can often smooth out possible future friction. We are all individuals with unique strengths and choosing (or not choosing) a person to act as your AIF is not an indication of how much you love him.
Also consider that possibly the best person to serve as your AIF may not be either child. An AIF need not be related. Always choose the person whom you trust and feel has your best interest at heart. Choosing a friend can also eliminate family jealousy among your children, if that is a concern. A friend might feel a stronger burden of duty to act as you would have wanted. A friend has no personal stake in your financials and might be able to act impartially where an interested child might struggle. But, acting as an AIF is a great responsibility that a non-relative might not want to take on and you might not want to request such a great favor. You also may not want to share all of your financials with your friend. Further, we often know our friends in limited capacities, and you must be certain that you trust your AIF, as he will be making many important decisions on your behalf.
What happens if you appoint someone and your relationship changes? DPOAs may be revoked by recording a revocation in the office of the register of deeds. You can then execute a new DPOA designating a different AIF or changing the powers granted. Always remember to record your revocation before executing a new DPOA to avoid any validity issues.
In an article that perhaps raises more questions than it answers, what’s the takeaway? Choosing an AIF is a serious decision that takes thought and consideration. It is easy to fill in a name on a DPOA without feeling any consequences in the interim. The problems will often come in the future, after incapacitation and inability to revoke. But a little planning now will solve a lot of problems later. A stitch in time saves nine. You should not make this decision lightly, but you do not have to make it alone. Seek advice from trusted advisors. Each situation is different. Find what works for you and your family. Your future self thanks you.