What Does Having Power of Attorney With Dual Agents Mean?
Entrusted Legacy Law
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May 12, 2023
Pennsylvania - Greater Pittsburgh Area
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A power of attorney is among one of the most important
incapacity planning documents you can have. It designates someone you trust
with taking care of your affairs if you become unable to do so.
In a power of attorney, you give one or more trusted people of your choice the
right to manage your affairs if you cannot do so because of a medical
emergency, mental incapacity, or other life event.
Every state has its own rules for the format, content, and provisions of powers
of attorney. In New York, for example, the statutory form states that, once
executed, the POA shall not be affected by a person’s subsequent incapacity
unless they have specified otherwise in the form. This is often referred to as
a durable power of attorney.
A power of attorney may be helpful in avoiding confusion among your family
members and loved ones by putting specific people in charge of your affairs
ahead of time. For example, you could appoint your spouse as well as a
professional as co-agents, separate agents, or primary and secondary agents in
your power of attorney.
Agency Further Explained
Many POA forms allow for a variety of options in designating who may act as
your agent. First, you will have to designate your primary agent. Depending on
the rules of your state, this can be one person or more than one person.
They may be able to act independently of each other, or you may be able to require that they act together. These technicalities are usually form- and state-specific.
In most POAs, you also have the opportunity to choose a successor or “backup”
agent. Again, this can be one or more person(s) who may act separately or
together. In some instances, you may be able to provide specific rules of
succession.
Powers Conferred on Agents
A POA gives your agent(s) control over a wide range of subject matter. This
can include the following:
- Real
estate transactions
- Purchase
of personal property or other goods
- Banking,
bond, stock, brokerage, and other transactions
- Business
operations
- Insurance
matters
- Estate
transactions
- Claims
and litigation
- Personal
and family maintenance
- Signing
agreements on your behalf
- Dealing
with your creditors
- Gifting
- Management
of benefits from governmental programs or civil or military service
- Financial
matters related to health care (records, reports, and statements)
- Retirement
benefit transactions
- Tax
matters
Many states do not allow a POA to confer power on an agent
to make medical or health care decisions on your behalf. Instead, this must be
done through another form, such as a health care proxy.
Legal Responsibilities of Agents
Most state laws have specific sections that govern the legal
responsibilities of an agent acting pursuant to a POA.
An agent, dual agent, or successor agent has a fiduciary relationship with the
principal and, as a result, the following duties:
- To act
according to any instructions of the principal or, if no instructions are
available, then in the best interest of the principal.
- To
avoid conflicts of interest.
- To
keep the principal’s property separate and distinct from any other
property owned or controlled by the agent.
However, many states specify this does not apply to property jointly owned by the principal and agent at the time of the execution of the power of attorney. It also may not apply to property that becomes jointly owned after the execution of the POA. - Not to
make gifts of the principal’s property to himself or herself without
specific authorization in a power of attorney.
- To
keep records of all receipts, disbursements, and transactions entered into
by the agent on behalf of the principal and freely disclose to third
parties if requested by the principal.
- To
share such records with:
- any
monitor, co-agent or successor agent named in the power of attorney
- any
government entity investigating whether the principal needs protective
services or is being abused or neglected
- court-appointed
evaluator or guardian ad litem, guardian, or conservator of the principal
- personal
representative of deceased principal, and
- any
other persons designated by law.
Agents can be liable for conduct or failures to act that
violate any fiduciary duty. A state’s law will usually define the extent of
their liability, so it is important to become familiar with this law before
entering into a POA or agreeing to serve as an agent.
A power of attorney can be durable or springing. The terms of a power of attorney usually become effective when the agents and principal sign it, or upon the occurrence of an event specified in the document.
Disputes Between Dual Agents
If you have elected to have dual or co-agents, you should consider whether you
wish for them to be able to act concurrently or separately. Each agent has
equal power to decide on the matters that the principal has specified in the
POA.
However, if you have specified that the dual agents must act together and they
disagree about what action is in your best interests, they could find
themselves in court, needing a judge to act as the tiebreaker, so to speak.
Waiting for a judge’s decision can cause a delay in situations where this is
not desirable. For example, if a health aide needs to be hired, or government
benefits need to be applied for, and there are disagreements, this could impede
appropriate care.
For this reason, many professionals recommend avoiding these situations by
allowing agents to act separately, not choosing people who have the potential
for conflict, or appointing one primary agent and a successor agent.
A successor agent can step in where your primary agent is unable or unwilling
to serve. In addition, you may be able to appoint a monitor, which is a person
who can be kept informed of decisions and actions your agent is taking. As
mentioned above, if your state permits the appointment of a monitor, they are
entitled to a record of all transactions done or made on a principal’s behalf.
The monitor can obtain this information from the agent or third parties upon
request.
Can I Terminate the Power of Attorney?
You can terminate a power of attorney if you see fit, as long as you are of
sound mind. There are several ways to end a dual power of attorney. You can
terminate your dual power of attorney in the following ways:
- Put it
in writing and notify all parties to the power of attorney – the agent,
co-agent, successor agent, monitor, etc.
- If the
situation is more complex, a third party may be able to file an action in
the appropriate court and ask the court to remove or replace the agent.
A power of attorney will also terminate in the following
circumstances:
- The
death of either the principal or an agent
- The
roles and responsibilities of serving as agent have been completed (for
example, where a power of attorney is solely for the purposes of
completing one real estate closing or transaction)
- A
clause in the power of attorney provides that the arrangement would end
once triggered
Setting up a power of attorney requires the expertise of a professional, especially because POA laws vary by state. Here at Sharek Law Office, we can provide guidance and ensure that your power of attorney meets your state’s requirements. Call us today at 412-547-9855 or click here to schedule your complimentary 15-Minute Introductory Call to learn more about options for your specific needs.
This article is a service of Sharek Law Office, LLC. We don’t just draft documents; we ensure you make informed and empowered decisions about life and death, for yourself and the people you love. That’s why we offer a Life and Legacy Planning Session, during which you will get more financially organized than you’ve ever been before, and make all the best choices for the people you love. You can begin by calling our office today to schedule a Life and Legacy Planning Session and mention this article to find out how to get this $750 session at no charge. Please note this is educational content only and is not intended to act as legal advice.
- To view the original version of this article visit www.shareklaw.com/post/what-does-having-power-of-attorney-with-dual-agents-mean
- Seniors Blue Book was not involved in the creation of this content.
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