Legalese — The Person You Trust

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Many times people come to me wanting to give authority to someone else to do something.  It might be a financial power of attorney, it might be a medical power of attorney, it might be an executor of a will, or something else.  That’s one of the things that lawyers do – they help people transfer property and power peacefully.

That’s a key word there, peacefully.

Often, when it is a parent transferring this power to the next generation, in order to keep the peace, they don’t want to choose amongst his or her children.  I get that.  I don’t have a favorite child, and I’m not too keen on picking one or the other to be in charge of something.  They want their children to be co-executors, or co-agents, or to make a joint decision about medical needs or finances.

In a vacuum, this is a good idea.  It means you don’t have to put one child in charge of the other, it means that one child can’t be accused of wielding too much power, and it means that one child can’t be accused of theft.

However, we don’t live in a vacuum.  The real world is messier and more complicated.

There are practical problems with having joint people making decisions, as anyone who has ever worked on a joint project or a committee can tell you.  It doesn’t matter how well you get along with the other person, one or the other will feel like they are pulling more of the load, and resentments built.  Besides that, having to have two signatures on each check or document can be a hassle, especially if both people don’t live in the same place.  What happens if one is on vacation or indisposed for some other reason?  I have run across a number of banks and other financial institutions that simply won’t honor a financial power of attorney that lists more than one agent.

With medical powers of attorney there are other concerns.  By definition, making a medical decision means that you are in an emotional position.  Things are not going well if you have to make a medical decision for someone else.  This will naturally make you sad or worried or stressed or any number of powerful emotions.  These emotional decisions can interfere with rational decision making in different ways.  The decision you might have made in a theoretical way when things weren’t actually happening and the decision you have to make when your mother’s life is on the line, for example, might be completely different things even if the scenario is the same.  Now if you and your brother have to agree before a decision can be made, it might be even more difficult.

These are the things you have to bear in mind when you are deciding who will be making these sorts of decisions and having this kind of control over your person and assets in the event of your inability to do it yourself.  You may want to choose the child who is located geographically nearest you.  You may want the child who is a CPA to do the finances and the child who is an RN to make the medical decisions.  You may want the child who is always level-headed to make the more emotional decisions.  Or, you may want the child who understands the world on a more gut level to make the decisions.  You may simply choose the oldest child, or the child who is the same gender as you.  You may decide to leave your children out of it and choose a trusted friend, sibling, or member of the clergy.

There is no right or wrong to this, there is only personal choice.  My only suggestion is that you choose a person you trust – not people you trust.

Nothing in this article should be construed as legal advice.  It is being offered for informational purposes only.  

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