08 Feb Power of Attorney: There’s Always Room for Family Conflict
Anyone who grew up in a dysfunctional family understands the potential for discord when it comes to the family estate and an inheritance. But even in the closest of families, if there’s money involved, there’s room for conflict.
Power of Attorney: Choose the person you can trust
In Alana’s case, the dust was still settling on her third divorce, and one of her kids was in and out of rehab for substance abuse. The youngest of three siblings, Alana always struggled to measure up to her rock-star brother and sister—they were the ones who excelled at everything they did, winning awards, graduating with honors and building successful careers. She was the one who always seemed to make a mess of everything.
And now her parents had named her brother their Agent for their Power of Attorney. She was hurt because this was something she had wanted to do—a chance to redeem herself to her family. But the fact that her own financial affairs were a mess and she couldn’t balance her own checkbook led her father to appoint her investment banker brother. It was he who would also be the Executor of the estate. Her sister, a doctor, would be their parents’ Agent for their Healthcare Directives. Alana was left out once again.
Your Power of Attorney is the person who will act on your behalf if you become incapacitated, the one who will take over your financial affairs, pay your bills and taxes, open bank accounts, withdraw funds, cash checks and trade stocks. It must be someone you trust; ideally, it’s someone who lives close by.
Parents tend to appoint one of their children as Power of Attorney for practical reasons. Many put their faith in their oldest child or choose the son or daughter who lives closest or the one who has a financial services background. In the same vein, for their Agent for an Advance Healthcare Directive, parents are likely to choose a son or daughter with healthcare experience.
There are limits on the powers of the Power of Attorney designation
- Right to information. The parent does not have to disclose to friends and family whom he or she named as Agent under the Power of Attorney. Likewise, that Agent is not obligated to provide information about the parent to his or her siblings.
- Limits on the powers of a Power of Attorney. A Power of Attorney designation does not enable the Agent to do whatever he or she wants. An Agent cannot change the principal’s will, breach his or her fiduciary duty or change or transfer the Power of Attorney designation to someone else.
- Power of Attorney expires at death. When the parent dies, the Power of Attorney ends and the Executor of the estate – appointed by either the principal or the court – takes control over the decedent’s property.
- Revocation of a Power of Attorney. The parent can revoke whomever he/she has appointed as the Power of Attorney. The revocation must be in writing and the former Agent Power of Attorney should be advised of the revocation.
Avoiding the potential for sibling discord
Sometimes conflict is inevitable. One child may be resentful that he or she was not chosen. Another child may not trust the chosen sibling to act according to the parent’s wishes. Just knowing that a Power of Attorney can be challenged in court is often enough for a sibling to act on his or her distrust or resentment. To minimize confrontations, as the principal appointing the Power of Attorney, there are alternative solutions:
- Designate co-Agents in the Power of Attorney document. Appointing two persons can be problematic if the Agents cannot get along. You could create separate responsibilities for each Agent, but that can be unwieldy and still can lend itself to conflict.
- Avoid appointing a family member altogether. Name a close friend, fiduciary or a bank. Avoiding conflicts and court involvement is important to ensure your wishes will be followed.
A Living Trust: One of the most thoughtful things you can do for your family
A Living Trust is a legal document that contains instructions for what you want to happen to your assets when you die. For my family, it meant that when my parents died, all of their affairs were in order, they had transferred all of their assets into the Living Trust and identified their heirs. Without a Living Trust, their estate would have gone into Probate and my brother and I would have been dealing with this long, expensive process—even while mourning the death of our parents.
Guideway is proud of our comprehensive Living Trust package that includes a Power of Attorney and Advanced Healthcare Directive. Best of all, we guide you through it and we prepare the legal documents. Schedule an appointment with Guideway today.
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