I WANT MY CHILDREN TO BE EQUAL
Clients often state when deciding who to name as their Agent under the Durable Power of Attorney that they would like their children to each be able to act. While that is a nice idea, it is often difficult, if not impossible to determine how your children will handle situations in the event you need them to act as your Agent.
When you name each child as Agent, with equal authority, you make it very difficult for financial institutions holding your money to determine who they should listen to – of course if your children agree 100% of the time this is not an issue. However, if they do not agree it may often require a Judge to determine who the financial institution should listen to.
In Florida, the Agent named in the Power of Attorney is a fiduciary. The Agent is expected to act with care, competence, and diligence, and if the Agent has special skills or expertise, he/she will be expected to use them. The attorney-in-fact must also act loyally for your benefit except as specified in the Power of Attorney. Finally the attorney-in-fact must not create a conflict of interest unless specifically authorized in the Durable Power of Attorney. Note that a Durable Power of Attorney may provide that an attorney-in-fact is not liable for any acts or decisions made by the attorney in good faith and under the terms of the Durable Power of Attorney.
An Agent has mandatory duties, which apply notwithstanding a contrary provision in the Power of Attorney. In other words, mandatory duties may not be altered. The Agent’s mandatory duties are as follows:
- The duty not to act in a manner that is contrary to the principal’s actually known reasonable expectations;
- The duty not to act in a manner that is contrary to the principal’s best interest;
- The duty to preserve the principal’s estate plan;
- The duty to perform personally; and
- The duty to keep adequate records.
An Agent also has default duties, which apply in the absence of a contrary provision. Thus, the principal is free to expand, curtail, or eliminate a default duty. The Agent’s default duties are as follows:
- The duty to act with care, competence, and diligence;
- The duties to act loyally and to avoid conflicts; and
- The duty to cooperate with healthcare providers.
Selecting your Agent requires you to decide who will truly manage your financial affairs and your personal affairs the way you would like. Will your Agent be able to handle difficult situations, will they pay your bills on time, are they organized, and will they take the time to make sure your home doesn’t fall in to dis-repair. These are just a few questions you will want to consider.
Keeping it fair is not always the first thing you should think about, who is going to have the knowledge and the time to act in your place is the question you want to consider first.