Durable powers of attorney are essential for incapacity planning, but they can also give rise to mistrust among family members that ends in legal proceedings. If one family member is named as power of attorney, other siblings, parents, or children could challenge the decisions that person (called the agent) makes. Whether you are the agent fighting off claims of mismanagement or family members challenging the agent’s authority, you will need to know your rights and options before going to court.
What Are the Rules Regarding Medical and Financial Powers of Attorney?
Powers of attorney may be financial, medical, or both. A financial power of attorney has the right to use the loved one’s bank accounts to pay bills, deposit disability or Social Security checks, withdraw funds, and even make stock trades on behalf of the incapacitated person (called the principal). A medical power of attorney, also called a health care proxy, gives someone the ability to carry out your wishes concerning future medical care.
In general, the relationship between agents and principals includes:
- Best interests. The duties of the agent may vary, but they are always required to act in the best interests of the principal.
- Non-disclosure. A principal isn't required to disclose the person who has been chosen as an agent, and the agent isn't required to provide information about the principal to family members.
- Access to the principal. Agents usually do not have the right to bar family members from seeing or speaking to the principal. However, an agent with medical power of attorney may prevent access if visitation would be detrimental to the principal’s health.
- The right of revocation. As long as the principal is not incapacitated, they can revoke a power of attorney at any time, for any reason. If the principal is no longer competent, they cannot legally revoke the power of attorney.
- Termination at death. If the principal passes away, the agent no longer has the power to make decisions regarding the principal's estate. Instead, the personal representative named in the principal’s will assumes control of the property.
Due to the wide range of powers given to agents, there’s always the possibility that they could be abusing their authority. If a third party believes that an agent has been stealing, misappropriating assets, mismanaging the principal’s affairs, or neglecting the principal’s needs, they may file a legal action to remove the agent.
Preventing Costly Legal Battles Over Finances and Future Care
If you are drafting a power of attorney for the first time, there are ways to avoid potential conflicts before you become incapacitated. There are also options for families who are in conflict to avoid a lengthy court battle.
An experienced elder law attorney can help you:
- Update your designations. It’s important to review your planning documents every few years to make sure you have selected the right person to make choices for you. For example, your chosen financial agent may have demonstrated that they cannot be trusted with large sums of money, or your original choice of agent has predeceased you.
- Name co-agents. You may not be aware that you don’t have to choose just one person to handle your affairs. If done correctly, naming in charge of finances and one in charge of health care can result in a healthy division of labor between medical needs and finances. However, if it’s not worded carefully, it will only increase the tension between agents. You may wish to include a family care agreement in your estate plan detailing which agent is in charge for areas of overlap (such as paying health care costs), and the consequences if the agreement isn't followed.
- Appoint a professional fiduciary. If you have multiple children and grandchildren who all have different ideas about where you should go for care and how your money should be spent, you may choose to name a professional fiduciary. Trusting a bank or attorney with your finances can prevent discord among family members and avoid the need for litigation.
- Resolve disputes through mediation. In many cases, talking through the conflict between family members can resolve the problem without going to court. A mediator can help get to the root cause of the disagreement and help everyone reach a compromise that respects your loved one’s best interests.
- Establish guardianship. If there is no way to avoid litigation, one individual may begin guardianship proceedings to protect an incapacitated relative. If successful, the guardian could be granted control over both finances and medical care.
If you believe that an agent is not acting in your loved one’s best interests, the attorneys at Landskind & Ricaforte Law Group, P.C., can help. Simply fill out our quick contact form or call us today to have us explain your options.
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