Can Two People Have the Power of Attorney for the Same Person?

By Larissa Bodniowycz, J.D.

Can Two People Have the Power of Attorney for the Same Person?

By Larissa Bodniowycz, J.D.

It is possible for two people to have power of attorney (POA) over the same person simultaneously, particularly if the principal indicates the request in the document itself. A POA is a legal document that grants a person the power to act on behalf of another person. The grantor is called the principal. The person that holds the authority for another is called the agent.

Elderly woman and young woman looking at paperwork together

The following are some examples of common scenarios where this issue arises. For the purposes of these examples, Jane Smith is a mentally competent 65-year old woman who lives in Florida. She has two children, Mary Smith and David Smith, who also live in Florida.

Successor and Co-Agent

If Jane drafted a POA having stated that she would like to appoint her daughter Mary as her agent, then Mary is the primary agent in this instance. However, if Jane includes verbiage in the document having indicated that she wants her son David to service if Mary passes away, becomes incompetent, or is otherwise unable to serve, then David is the successor agent. This is true whether or not the document uses the term "successor agent." In this example, David only gains authority when Mary can no longer serve. As long she can do so, however, David has no power to act on his mother's behalf.

If, instead of naming David as a successor agent, Jane names him as a co-agent, then David and Mary both have authority at the same time. A common issue in this scenario is whether David and Mary can act independently or if they must always act together. Ideally, the POA document will state whether David and Mary can act independently. What the document says controls. If it is silent on the issue, state laws provide a default rule. In Florida, like many states, David and Mary would be able to act independently.

If Jane and David are co-agents who must act together, another issue that may arise is what happens if they do not agree on the best course of action. If Jane is competent, she can step in on her own behalf and make the decision. If Jane is incapacitated, however, Mary and David must follow any rules for resolving disputes that the document gives. If there are no such rules, they need to obtain court intervention.

Multiple Powers of Attorney

If Jane has two powers of attorney, one that she wrote three years ago that names David as the sole agent and another that she wrote one year ago that names Mary, who holds the power depends on Jane's intent and what is explicitly stated in the documents. If the document naming Mary states that all other powers of attorney are revoked, which most do, then Mary alone holds the power for Jane and David has no power to act on Jane's behalf.

If both powers are limited in scope, David and Mary would each only have the power to act in the specific circumstances laid out in their respective POAs. If both documents are general, or unlimited in scope, then whether both are valid would be based on Jane's intentions. If there is a conflict over this, resolving the issue could require court involvement.

The best way to avoid confusion over who has authority is to have a clearly drafted POA that distinguishes between successor agents and co-agents, outlines their powers, and expressly states whether other similar documents drafted by the principal remain valid.

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