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Elder Law of Louisville's Blog

Tuesday, January 18, 2011

Why Walsh & Wilson Does Not Like Co-Power of Attorneys

Our clients can attest, we do not recommend naming two or more people to act as a Power of Attorney, Health Care Surrogate, Executor, Trustee, etc.  It is a breeding ground for conflict.  If two people have to act together, what happens when they disagree?  Nothing gets accomplished.  What happens if one of them gets mad and just walks away?  Nothing gets accomplished. 

Attorney Craig Reeves, former President of NAELA and practicing elder law attorney in Kansas City, MO, agrees.  Here is an answer he provided for the NY TImes' Ask an Elder Law Attorney section of their New Old Age Blog:

Q: What is done when a power of attorney is left to both siblings jointly but one decides to become uncommunicative and “checks out,” not participating in decision-making, handling estate matters or caring for a parent with dementia? Does the sibling left with shouldering the burden really have to go to court to get the other sibling’s name taken off the power of attorney? — Kcz

A: I think you may have to go to court, but there are two avenues you should pursue first.
 
First, take a close look at that power-of-attorney document. Re-read the section where you and your sibling are named (it usually will refer to you as “attorney-in-fact” or “agent”). Make sure the document really requires both of you to act together and doesn’t say “either may act alone” or something similar. In the statutes I’ve checked, if you don’t see language like that, you will have to act together.

Also carefully review the document to see if there’s any provision that allows one agent to remove the other or otherwise describes a process for handling this type of situation. It’s not common, but it may be buried in there somewhere. Perhaps the attorney who drew up the document foresaw the possibility of conflict.

If nothing in the document helps, the next alternative is to look at the state statutes. Every state has laws that authorize durable powers of attorney, and there may be a statute or case law in your state that addresses this situation. You can usually find these statutes online.

 

If neither of these approaches helps, the only way to change an existing legal document is to file a petition asking the court to modify it. Typically, this would be the court that deals with wills and trusts; they tend not to have long dockets, so you should get a hearing fairly quickly. You’ll need an elder law attorney at this point.

Your question indicates why naming multiple agents in a durable power of attorney and giving them equal authority can create chaos. If everyone gets along, if everybody’s always available, the partnership may work. If there’s conflict, or someone can’t be present when needed, problems arise.

I always recommend that a durable power of attorney name agents one at a time, in order of priority. The first person can serve alone, but if that person dies or is incapacitated or not available, then the next person can act alone, and so on down the list.

 
 
 
 

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The attorneys of Elder Law of Louisville (formerly Walsh & Wilson, PLLC) assist clients in Louisville, Kentucky and surrounding counties of Jefferson, Oldham, Shelby, Spencer, and Bullitt. Our Office also serves Southern Indiana and the towns of New Albany, Jeffersonville, and Clarksville.



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