Occasionally, a client will ask me “Do I really need a backup or successor listed on my Power of Attorney, Health Care Proxy, Will or Trust”? Almost everytime my answer is an unequivocal YES!…
But “why do I need to name a successor . . .” Because, I tell them, we never know what will happen in the future and my job is to help you and your family avoid the unexpected – The most important part of my job as an Estate Attorney is to use my years of experience to anticipate the problems that might arise, that you never thought of and find a solution to those problems.
An easy way to protect you from unanticipated problems in the future is to have a back up plan. Naming a successor agent, whether it is on your health care proxy, power of attorney, last will and testament or trust, is an easy way to ensure that those safeguards we put in place work when they are needed.
Say, for example, that you and your spouse name each other as health care proxies, powers of attorney, executors and trustees and then you and your spouse are in an accident together – or worse. If you haven’t named a successor or back up agent on those documents, the documents fail, or at least require some court intervention to work properly. This is a problem easily solved by naming one, two or even three back up agents or co-agents on every document.
Once clients know they will need to choose a primary agent and a successor or back up agent, the next question is always who do I appoint for these jobs?
Who should I pick as my health care proxy? Most people choose their spouse or significant other to act as their medical decision maker. If there isn’t one, people often choose their children, parents or close friends to make decisions for them if they can’t. Picking a health care proxy means choosing the people in your life who you feel will make the best medical decisions for you in an emergency. Most people choose someone who is compassionate but strong, who can make difficult decisions, if needed and someone who will listen to your wishes if needed.
Does my health care proxy need to be the same person as my power of attorney? NO! You can choose different people for every job. In fact, it often makes sense to choose someone else to be your power of attorney, because this job might require a different type of person to act. Powers of attorney are often spouses, but sometimes it can be someone you feel is responsible, detail oriented and has a good head on their shoulders.
Does my husband/wife need to be my executor? NO! You do not need to choose your spouse to be your health care proxy, power of attorney, trustee or executor. You are free to choose the people who make the most sense to you when creating your documents.
Should I choose my parents to be my agent? For younger clients, like students and young families, appointing parents makes sense. It is likely your parents at this stage of life are healthy and the most trusted people in your life. So go ahead and name your parents. As we get older, however, our parents get older too, so as you revisit your estate plan, choosing agents who are healthy and well is important to the success of your plan, so we might advise you to choose someone other than your parents.
Do you ever suggest just one agent? Not if I can help it. I do have clients who have a very small circle of trusted friends and family. If absolutely necessary, having documents in place with one named agent is better than having none. However, I urge all clients to choose more than one agent to list on important documents.
What happens if I don’t name a backup person? For a health care proxy, there is state law that will prioritize who makes medical decisions in an emergency. Of course, the issue is that the hospital may allow someone to make choices even if you do not want that person involved. For a trust or will, a family member or friend will have to go to court and ask a Judge to appoint a person to act. Again, that person may not be the person you would choose. With a power of attorney, your family could be forced to file a guardianship proceeding if you become incapacitated. Without proper decision making ability, your loved ones may be unable to manage your finances, make important decisions about your care and treatment or plan for medical coverage if your planning documents fail.
Part of our job as your planning attorney is to help you choose the best people to help you meet your goals. Let Cara Law guide you through the process of protecting your future.
