By. Jason R. Ebacher, Esq.
One of the toughest decisions my clients have when thinking about their wills, powers of attorney, health care proxies and other estate documents is deciding whom to appoint as their agent within those documents.
The agent (or executor or personal representative in a will) is the person who acts on your behalf in the event you are unable. For instance, in a power of attorney, the agent will be able to do your banking, file tax returns, hire people to take care of you and even sell your house (if appropriate and if allowed by the document).
Clients, when making the decision of whom to appoint, often want to appoint two children as joint agents so that things are “equal” between the two. If this is the case, I often advise my clients to think about this some more as this decision should have nothing to do with someone’s feelings being hurt. Picking someone you trust to follow your wishes—if you cannot—should be the only reason why you would select someone as an agent.
When speaking to clients about this topic, I often refer to one of my first clients. For purposes of this article, I’ll refer to her as Helen. Helen had two adult children, James and Janice.
An Example of an Agent:
I remember asking Helen who she wanted to appoint as her executor, which is now referred to as a personal representative in Massachusetts. She immediately stated James and then Janice as the backup. After making the same selection for her power of attorney, I then asked her who she wanted to appoint as her health care proxy.
After a long pause, she said, “I have to pick Janice.”
Sensing the apprehension in her tone, I ask why she felt she needed to select Janice to which she replied, “because she will be upset if I don’t pick her for something.”
Feeling the need to inquire further, I asked if she thought Janice was capable of making an important health care decision such as the removal of life support?
Helen, replied, “oh no, she would keep me alive forever.”
“What about James,” I asked? “Would he be able to make that decision?”
“Absolutely,” Helen replied, “he is cool as a cucumber. He will do whatever I ask him to do.”
As Helen’s attorney, I informed her that she could select whomever she wanted but my advice would be to pick James as her health care proxy as he seems best suited to carry out her wishes. Fortunately, Helen took my advice.
What about selecting joint agents? If this is your plan, please ask yourself the following questions:
- Why do I want to appoint joint agents? Am I trying to make things even? Do I not fully trust one of the people and want to have a checks and balance system in place?
- Have I talked to the individuals involved to see if they want to serve jointly with each other?
- Do these two people get along and think along the same lines?
- What happens if they cannot agree on a decision?
Part of the work that I do with my clients is helping them sort through issues like these so that their estate documents—and the agents appointed—will serve them well in a crisis.
For further assistance in whom you would like to select as your agents, please contact our office at: (978) 269-4485 or email me at: firstname.lastname@example.org and we will be happy to help.