Clients often intuitively know who will and who will not be able to effectively serve as their agent in a trustworthy manner. When my clients know who they want to serve, we often do not discuss the factors we consider when the choice is not so obvious. Let me share a few with you.
First, consider if the person you might choose actually has the ability to serve. For example, the agent under a Durable Power of Attorney should have demonstrated in their own life and vocation the ability to successfully handle financial and personal business matters. If the beloved family member or friend you want to name has a history of business failure, tax liens, foreclosure, eviction, repossession, and bankruptcy, you probably need to keep looking! Likewise, the person named as your surrogate, charged with making or enforcing health care decisions under your Designation of Health Care Surrogate, or perhaps even end-stage decisions for you under a Living Will, should have at least a competent layman’s understanding of current health care practices, medical treatment options, and end of life care protocols, such as palliative care and hospice care.
Life experience may help some agents’ ability to serve. While the age of 18 is legally sufficient to serve as an agent under a Florida Durable Power of Attorney or as a surrogate under a Designation of Health Care Surrogate or Living Will, 18 is still very young. Perhaps you could defer naming that candidate until they reach the age of 25, or even later in some cases. Of course, age doesn’t help everyone to develop the maturity, discretion, and responsibility to so serve, so don’t let attaining a particular age be the only factor under consideration.
In addition to having the ability and experience to serve, the person you choose as your agent should be able to follow your wishes and your preferences as to the handling of your affairs. For example, if your agent under a Durable Power of Attorney is a survivalist and wants you invested in cash, gold and diamonds based on their own personal opinions, this may not be consistent with your philosophy of traditional investing and your own personal acceptable risk tolerance. In such a case, it would be better for you to find a candidate who is comfortable making responsible decisions which reflect your own values, goals, and established preferences.
Further, the person you name as your agent should also have your best interest at heart and act only with that being first and foremost in their mind. This sentiment is often expressed as the “duty of loyalty.” For example, if your agent is proposing to invest your savings into his or her own business, then a conflict of interest exists. Your agent should not prefer his or her own interests over yours, and should at all times be acting on your behalf and with your best interest solely in mind. Unfortunately, many unscrupulous agents supersede their authority and breach their fiduciary duty of loyalty to their principal, giving rise to financial loss to the principal, and resulting in harm to the emotional well-being, mental health, and physical health of the principal they are supposed to be helping. Such a breach of the duty of loyalty by an agent usually constitutes exploitation or financial abuse of the principal by the agent. Exploitation can even happen as to bank, credit union, or other financial accounts, by the actions of an agent whom you have also named as a joint account holder. While both civil and criminal remedies may be available in such a case, as with many things, an ounce of prevention is worth a pound of cure.
Finally, you should also consider the issues of practicality and your relationship to the intended agent or surrogate. For example, if your favorite child is living in Hawaii, seldom communicates with you, and sees you every five years whether they need to or not, all other things being equal, that child would not be a great choice as an agent or surrogate who may need to be able to act on your behalf on a moment’s notice. On the other hand, with the ability to communicate almost instantaneously worldwide via various 21st Century technology options, the absence of physical presence alone should not eliminate the choice of an agent or surrogate who is otherwise trustworthy and qualified to serve.
Picking the right agent in the first place is the key. Unfortunately, in the real world, this is often easier said than done and you should discuss your choices and goals with an experienced elder law attorney.
Authored by Grady Williams.
Edited by Audrey Ehrhardt.
Reviewed by Walt Shurden.