Estate Planning: “When It Comes to Selecting Agents and Representatives, More Isn’t Always Better.”

Estate Planning: “When It Comes to Selecting Agents and Representatives, More Isn’t Always Better.”

When there is more than one obvious choice for Personal Representative (of your Will), Trustee (of your Trust), Agent (for your Health Care Directive), or Attorney-in-Fact (for Power of Attorney), consider the decision-making process for your friends and family and the pressures, conflicts, and road blocks they may experience.

Bill is a retired accountant. He is a widower and has three adult children: a son, who is a nurse; a daughter, who has taken over his accounting business; and another daughter, who is a teacher. Bill, who wants his kids to know that he loves them all and doesn’t want to communicate any show of favoritism, makes them all Co-Personal Representatives, Co-Health Care Agents, and Co-Attorneys-in-Fact, to act as a unified group – everyone must agree in order to make a decision on Bill’s behalf. Bill has added successor choices from his list of friends and more distant family members.

When Bill becomes terminally ill and is unable to make his own health care decisions, his nurse-son tries to explain to his siblings why he thinks Bill needs a DNR (Do-Not-Resuscitate order) and hospice care to make Bill’s final days comfortable at home with his kids around him. Bill’s accountant-daughter is on board with that decision. But, his teacher-daughter isn’t ready to let go of her Dad yet, and feels strongly that Bill would want to fight to stay alive as long as he can. She claims his life choices and religious upbringing support this action. But, none of the kids ever actually talked with Bill about his end-of-life choices, nor was Bill particularly communicative in his Health Care Directive on the subject. The kids fight bitterly with hurtful accusations and each stands his/her ground. While the fighting continues, Bill is without his kids at his side because they refuse to be in the same room together. Bill’s hospital bills pile up, and his accountant-daughter suggests selling the family cabin to cover those bills using Bill’s Power of Attorney. The kids have not continued to use the cabin as adults. Again, Bill’s teacher-daughter agrees and seems to understand the difficult decision, but his nurse-son wants to keep the house in the family. More fighting with no negotiated agreement in sight. Finally, after Bill’s death, none of the children can agree on how to distribute the personal property of their parents, nor can they agree on how the taxes will be paid. The siblings’ relationships are affected, perhaps permanently.

Can this be avoided? As everyone knows, when people want to fight, they will. But, sometimes a little prior consideration can avoid a good deal of pain and misunderstandings or disagreements by selecting singular agents (with successors) and representatives instead of asking multiple people to agree. If Bill was genuinely concerned that his children needed an objective perspective, he could decide to pair up one of his children with a professional. Or, if he was fairly confident that he could count on their decision-making on his behalf, he could assign each child one job, according to their strengths and weaknesses. For example, Bill could ask his accountant-daughter to be his Attorney-in-Fact, because she has the most experience with financial decision-making. His nurse-son is likely best suited for medical decisions and could be his Health Care Agent, and his teacher-daughter, who is the most interested in maintaining the family history and treasures, is perhaps best suited to distribute Bill’s personal property as Personal Representative. Although it may seem like Bill is favoring one child over the other, consider what family strife Bill may have been able to avoid by selecting individuals over groups of decision-makers. Don’t forget, you can name as many people as you’d like as “successor” agents and representatives. But, successors still work one at a time.

Talk to your legal advisor about what might be best for you and your friends and family, and ask for your options to address your particular relationships and potential issues that may arise.

ALL READERS:  This blog is not, nor shall it be deemed to be, legal advice or counsel. This blog does not create an attorney-client relationship with any reader.  It is designed to encourage thoughtful consideration of important legal issues with the expectation that readers will seek professional advice from a licensed attorney.