Legalese — Choosing Between Your Children

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When people come to my office for estate planning, they have some difficult decisions to make.  One of the biggest ones is who should be in charge.  This may be who should be the executor of one’s will, or who is in charge of your finances or medical care if you should become unable to do it yourself.  Often, when people have more than one child, they don’t want to choose between their children, and so they ask for co-executors, or co-powers of attorney.

I almost always try to talk people out of this.  I think it is, generally speaking, a bad idea. It makes things more difficult in the long run.

For one thing, if you have people with joint authority, then you need everyone to sign off on everything.  That means that your children, with their busy lives, are going to have to get together every single time something as simple as a check needs to be signed. This may be logistically very difficult, especially if your children have children of their own and don’t live in the same town. 

It also makes for disagreements. If every single thing needs to be a joint decision, then every single thing needs to be agreed upon. Even if your children get along well, arguing over whether or not to continue with the same insurance agent or switch to one that might charge a little less can put a huge rift in their relationship.  To say nothing of whether they have to hash it out and agree on when exactly to discontinue life support.  Decisions made by committee are rarely efficient. Someone ought to be in charge.

Another reason why this is a poor idea is that some banks and other financial institutions will not honor a joint power of attorney because it potentially makes them liable for fraud. If two signatures are necessary on each check, then if a check goes through with only one signature, the bank could have repercussions.  This may very well happen, since not every check from every account is examined closely before being processed. So some banks have a blanket rule that they will not transact business in this way.

So then, what do you do?  One alternative is to have language in your power of attorney or other document that either co-trustee/executor/attorney in fact may act independently of the other.  Of course, that has its own potential for trouble, if one sibling, for example, has a different idea of what should be done with the money or health care decision.  Or, you can just choose.  If you want, you can put in your document why you chose one child over the other, to minimize hard feelings down the road. You may choose your eldest child. You may choose the child who is geographically closest.  You may choose the child with the best history of financial management. You may choose the child who has some health care experience or knowledge. Or you may throw a dart at a wall chart and see how it lands. Or, you can separate out the duties —  this child is in charge of your powers of attorney, this child is the executor of your will. Bear in mind that sometimes neither of your children is the best choice – perhaps your own sibling might be better, or your best friend, or a trusted accountant.

Remember this: while it may seem this way, it is no honor to be chosen for these duties. It is a lot of work, and a lot of aggravation. The child who isn’t chosen, if they are objective about it, might very well feel relieved that they don’t have to deal with all the trouble.

Much of this is a personal choice rather than a legal one. You know your children – you know who will do the best job, and who has time in his or her life to what needs to be done efficiently.  The trick is to decide before it is too late.

Nothing in this article should be construed as legal advice. It is being offered for informational purposes only. No lawyer can advise you about your case without hearing the particular details of your situation.

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