What Does Having Power of Attorney With Dual Agents Mean?

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Entrusted Legacy Law

For more information about the author, click to view their website: Sharek Law Firm LLC

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May 12, 2023

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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 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 412-347-1731or 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.

What Does Having Power of Attorney With Dual Agents Mean?

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Entrusted Legacy Law

Elder Law 100 Pinewood Lane Suite #303, Warrendale, Pennsylvania, 15086

Our Firm Prepares You for Life What makes our firm different is that we were built with the needs of growing families in mind. We understand you are BUSY, you are growing, you are planning for a life of prosperity and you value ease, convenience and efficiency. You are raising children, and caring for elderly parents, while also working hard to build your own nest egg for a lifetime of support. You want to know youve made the best decisions for your family and that your plan will work when your loved ones need it most. You want to make sure your minor children would be raised by the people you choose, and never by anyone you wouldnt want, and that your teens and adult children are properly prepared to care for you and what you leave behind.  You want to feel confident that youve made the right choices, and handled everything so that you arent leaving behind a mess, when something happens. That is our focus as well. Weve developed unique systems to give you the same access to a Personal Family Lawyer as was previously only available to the super-wealthy, so you can have the guidance you need to build and maintain a life of prosperity and wealth. And, to keep your family out of court and out of conflict, which is the greatest risk to the people you love and all you have created, even if youve already worked with a traditional lawyer or created documents online. Our Team Is Here for You We encourage communication with our clients. In fact, weve thrown out the time clocks so you never have to be afraid to call with a quick question. Everything we do is billed on a flat-fee basis, agreed to in advance, so there are never any surprises. We have a whole team to serve you. When you call our office to ask your quick question, you wont have to wait hours or days for a phone call back. Youll get your question answered, right away. And, if you need to schedule a more in-depth legal or strategic call with your Personal Family Lawyer, a call will be scheduled when you're both available and ready for the call so we can make the very best use of your time and not waste your time by leaving voicemail after voicemail back and forth. And, we ensure the most important details of your planning are followed through on and your plan continues to work throughout your lifetime. We have a funding coordinator to ensure your assets are owned the right way throughout your lifetime and none of your assets will end up going through a long, expensive court process or being lost to the state because they were missed after your death. Weve created unique membership programs to keep your plan up to date year in and year out as well as give you access to our Trusted Team of Legal Experts for guidance on ANY legal or financial matter. One day you will need a lawyer. I dont know why and I dont know when, but when you do, you will be grateful you can call on us and well be here to advise you or get you out of a jam. We Help You Transfer Your Life and Legacy Lastly, we believe your financial wealth is only a small part of your overall Life and Legacy Planning which is made up of your far more valuable and most often lost upon incapacity or death intellectual, spiritual and human assets. These assets are what make you who you are, and sum up whats most important to you. And, a survey of inheritors has revealed that what they care about even more than inheriting your money, is inheriting these intangible assets.   Most estate plans only focus on the transfer of your financial wealth to the next generation. Most people have such great intentions of passing on the intangible, but very few ever get around to it. Its just not a priority, until its too late. How much do you know about your grandparents values? Their most prized personal possessions? How they felt about you? What they had learned during their lifetime? If you are like most people, you know very little. Thats why we build the capture and passage of these most valuable assets into every estate plan we create. Not only will we help you pass on your money, but also your values, your insights, your stories and your experience the truly valuable assets your loved ones care about the most.  Weve developed a tool that allows us to capture and pass on your whole family wealth, including your Intellectual, Spiritual and Human assets.  I cant go into all of the details here, but well definitely talk about it when you come in for your Life and Legacy Planning Session.

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