Naming an individual to act on your behalf carrying out a power of attorney (POA) document is a very important decision. Whereas POA can be given to anybody, most people usually decide on a trusted family member to manage the responsibility of making health and/or financial decisions on their behalf. Elderly parents usually name their adult child as POA, but this can be a highly confrontational move in large families and those with convoluted sibling behavior. Conflicts over who is most appropriate for this role can be an annoyance, but they can also turn into embittered legal disagreements.
Power of attorney documents are a vital part of planning for future health care requirements and financial decisions, but it is essential to comprehend how these legal documents can be created and the impacts they could have on family relationships.
Typical Factors in Choosing Who to Name as POA
There are a couple of different practical issues that factor into choosing who is best appropriate to serve as POA. For many parents, the decision is clear cut. A lot of them automatically put their trust in their eldest child or choose the adult child that lives closest.
Taking each child’s individual abilities and degree of trustworthiness and reliability into account is also important, particularly when it comes to putting their trust one of them with the capability to make financial decisions. For instance, Angela Sanderson, a certified elder law attorney practicing in Richmond, Virginia, says clients have expressed to her they’ve come to this decision by dismissing adult children that “can’t even keep their checkbooks balanced.”
Many parents have an easier decision to make when their children’s individual careers confirm their ability to make health decisions and/or financial decisions. “As for medical POA, when their child is a registered nurse or general practitioner, that child is usually chosen since they’re more familiar with health care issues. When their child is a financial advisor or a CPA, they could be named as financial POA,” says Joseph Martin, a certified elder law attorney.
In other situations, parents might not be assured of any of their children managing these duties. They might resort to naming another individual outside of the family, like a close friend or even a professional 3rd party, as POA.
Potential Problems Naming Joint or Co-Agents as POA
Adult children usually don’t want to manage a parent’s medical and/or financial decisions unless they are required to. Serving as a loved one’s POA is not a simple or easy job. Yet, feelings are undoubtedly hurt if one child is selected over another for the responsibility. Regardless of the parent making this decision rationally and sharing their reasons, the insinuation is that non-POA children are deemed an unfit in some way or another.
Luckily, it is possible to distribute these responsibilities among siblings to avoid squabbles and hurt feeling feelings. Obviously, there are 2 types of POA: one for making medical decisions and one for making financial decisions. In some instances, one individual holds both powers. Granting each of these legal obligations to two different children might be a way to avoid conflicts, but it is vital to understand that they are still required to work with one another. It is very challenging for the medical POA to hire continual care services when the financial POA has a firm grasp on their parent’s savings and income.
One option that everyone should think about when drafting their POA document is naming successive agents. Meaning that when the primary agent is declines or is unable to fulfill their obligations as POA, then a secondary agent is going to be able to legally step in to oversee the principal’s affairs. Naming successive agents might not go far to improve sibling relationships because they are listed in desired order. Nevertheless, such action serves as a legal backup plan and significantly improves the possibility that a trusted individual is going to be able to manage decisions even if something unexpected occurs. (In quite a few cases the primary agent and/or caregiver might catch an ailment or pass away before their parent, so it’s vital to have a legal “backup plan” in place enabling another agent to take on the role quickly and effortlessly.)
Another option is naming co-agents in the POA document. Co-agents have equal decision-making capabilities, in which may be tempting for families that are looking to de-stress tensions. HOWEVER, there are negative effects to this approach. Laws vary state to state regarding whether co-agents can be named and the way they can make decisions, so it is crucial to speak with an elder law attorney that is knowledgeable is the laws of the state at issue.
Preferably, the agents would work alongside each other regardless of the law to oversee a parent’s medical and/or financial matters, but that is difficult to accomplish for a lot of families. If the co-agents are given joint powers of attorney, then they are unable to act independently and are required to make all decisions together. This poses significant challenges if the agents conflict with each other or have difficulties coming to agreements. At the same time, many states enable a POA document to be drafted so the co-agents can act separate from each other. Once more, this can pose issues if they are unable to agree.
The POA Decision and Possible Family Outcome
Even if the naming of POA is streamlined and didn’t involve much commotion initially, that doesn’t mean disputes aren’t a possibility once the agent officially starts managing a parent’s matters. Siblings that disagree with a POA’s actions can cause discord within the family and even create huge legal difficulties for one another. The following are a couple of the most common challenges elder law attorneys see over POA namings.
Putting into Question the Authenticity of the POA Document and Actions of the Agent
An individual is required to be capable in order to name an agent to legally act for them. Creating a POA when a principal is uncapable of understanding how it functions and means is against the law. Whereas it is important to ensure no one is putting undue pressure on a senior in order to acquire POA, many displeased family members have accused legitimately appointed agents of taking advantage of their feeble or perplexed parents. If these doubts are justified, then it is essential to notify the proper authorities and guarantee the principal is free from danger.
Nevertheless, if these allegations are rooted in resentment or dissention instead of concern over questionable legal and/or moral practices, the agent can still get in trouble even if they have acted accordingly. If allegations are reported and no misconduct has taken place, the entire family experiences a long and distressing investigation (and possibly a costly trial) that simply results in more animosity toward one another.
Continuing sibling rivalry chips away at the power that an agent maintains and can cause adult children to argue over everything from minute details to considerable long-term decisions. When the siblings don’t trust the individual named as POA, what Sanderson often sees occur is continually putting in question their decisions. One or several siblings might always seem to be on the agent’s back, questioning each and every decision they make, she says. This can be utterly draining for the adult child that is just attempting to do the best for their parent(s). Such an arrangement can impact the POA’s decision-making capabilities and also puts unreasonable emotional strain on parents.
Unwilling to Follow the Principal’s Wishes
An agent has a legal responsibility to act in the best interests of the individual they are representing, even when it comes to making hard medical and financial choices. Including things like adhering to a Do Not Resuscitate order and selling the family home to fund extended care. “If an agent does not adhere to the principal’s wishes, that individual could be sued,” Martin warns.
In one case, Sanderson remembers that an adult child that was granted power of attorney for health care declined to adhere to her father’s living will, which specified a desire not to use certain life-prolonging measures. The POA’s sibling contested the legality of this choice and at a bed-side hearing, it was established that the POA wasn’t acting in the father’s interests. The request in the living will for withdrawing life support was satisfied.
Inheritance is big motivation for conflict among siblings, and issues can arise regardless of whether the principal is still living or has already passed away. For instance, siblings may fiercely oppose using a parent’s funds for paying for long-term care since it is going to reduce their inheritance, causing contention.
Another more serious case may develop when siblings allege the POA mismanaged funds, especially following the parent pass away and they realize they are going to receive a smaller inheritance than was expected. This financial struggle can quickly intensify and end up in court to show if a POA has legally acted in overseeing the principal’s matters. When the POA has acted illegally or immorally and the principal is still living but debilitated, the other siblings might pursue legal guardianship.
Siblings often protest when an agent pursues payment for their time and services additionally. This can occur if a POA document is devised to include these conditions of service and compensation and when agents that did not get paid for their services try to recoup some of these costs from the parent’s estate following their passing away. “When one child spends more time taking care of their parent and feels like they should get more, they are able to give himself or herself more in moderation,” Martin says. But, of course the other siblings might not think it’s just, because POA compensation directly impacts their share of the inheritance.
When the POA is Not the Pro-Active Caregiver
In conclusion, issues often come up when the individual that has been named POA is not actually the person providing routine care. For instance, it can be maddening, if not impossible, to effectively manage Dad’s care when you’re living with him and helping 24/7 but your brother is the one that has legal authority for making medical and financial decisions. A lot of resentment grows in situations such as these, particularly when POA siblings are not regularly witnessing a parent’s health condition and needs face to face. Respite care is typically something that is forbid to the hands-on caregivers by POA siblings that oversee things from a distance since they do not feel it status.
Even when the decision over appoint power of attorney isn’t emotional, things can take a turn when the circumstances become more significant. These are just a couple of the common situations that family caregivers could experience. It’s important to talk about personal wishes with loved ones sooner than later, put them in writing using legal paperwork such as POA’s, advance directives, and wills, and know how these legal devices work. Attorneys agree the resolution of sibling rivalries and encouraging trust among members of the family can help avoid disputes over financial and medical decision making, prevent expensive court conflicts and foster cooperation in caregiving.
Johnston, L. (2020, June 18). When family members feud over power of attorney. AgingCare.com. Retrieved January 18, 2022, from https://www.agingcare.com/articles/family-fights-over-power-of-attorney-153319.htm
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