What if My Agent Wants Off the Dual Power of Attorney After I'm Incompetent?

by Heather Frances J.D. Google
No matter how carefully you choose your agents, they can back out.

No matter how carefully you choose your agents, they can back out.

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A durable power of attorney, or POA, names another person to be your agent. This person can make decisions on your behalf if you become incapacitated, such as paying your bills and managing your investments. You can name a single person, two agents who must work jointly or two agents who can work separately. You may also name alternate agents to act in case your primary agents can't. But you can’t force any agent to accept authority -- your agent can decline to act under the POA, before or after your incapacitation. If no agent wants to act, the court may have to appoint a guardian instead.

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Agents’ Authority

You can draft your power of attorney in such a way that it requires two agents to act together, particularly if you are concerned that an agent acting alone might abuse his authority. Agents may have many reasons to refuse to act under a power of attorney, such as wanting to avoid the responsibility or potential conflict with other family members. Whatever the reason, if you appoint two agents in your power of attorney and the other agent is still able and willing to serve, that agent’s authority continues, and he is still responsible to carry out the duties outlined in your document as long as your POA gives him authority to act alone. You can also draft your power of attorney to require two agents who must act together. The language in the document determines whether the remaining agent can act on his own if the other agent refuses his role.

Alternate Agents

If you plan to appoint joint agents and require them to act together, you may also want to name alternate agents who can step in and serve if one of your primary agents backs out. Primary agents are those originally given authority in your POA document. The alternate agent named in your original power of attorney has no authority unless a primary agent becomes unable to act or refuses his appointment. You can name alternate agents whether your primary agents have joint authority -- meaning that they must act together -- or separate authority, meaning that each can act independently. For example, if you name two primary agents who must act jointly and one backs out, the alternate agent will step in to act with the remaining primary agent.

Talking to Your Agents

To minimize the likelihood that your agent declines to accept duties and responsibilities under the power of attorney, it's a good idea to first ask the people you name as agents and alternate agents whether they are willing to accept their roles. That way, you can change the appointments if necessary, while you are still able to do so, and your agents will know in advance what their duties will be. You can also update your power of attorney document periodically, for example, when a major life event occurs -- such as a divorce -- or when your needs change.

Guardianship

If all of your agents and alternates are no longer able or willing to accept their roles, a court may be forced to appoint a guardian or conservator to act on your behalf. Without a power of attorney document or court-appointed guardian or conservator, no one has the ability to act for you once you become incapacitated. The appointment process is governed by your state’s laws, but guardians typically look after your physical needs and conservators typically look after your financial decisions.