Can a Power of Attorney Include Multiple Agents?
By Gullotta Law Group on April 18th, 2019 in
What is a Power of Attorney?
The laws regarding California powers of attorney are found in the California Probate Code. The basic requirements for a power of attorney are that the principal must have the legal capacity to enter into a contract and must be at least 18 years of age. There are many instances in which a power of attorney could be applicable. Perhaps parents are getting older, and you are worried about whether they will be able to continue to handle their finances.
Or perhaps you wonder how you could access a loved one’s finances to pay bills and make other key decisions should that person become incapacitated. A document in which a person designates a family member or friend to act in their place is known as a power of attorney. There are several types of powers of attorney, with two of the most common being a durable power of attorney which encompasses financial decisions and a medical power of attorney which covers decisions related to health care.
If you are obtaining a power of attorney for your parents or another elderly loved one, you will want to go over the forms with the person or persons, then have the documents signed and witnessed and signed by two other people or by a notary public. You will keep the original documents in a safe place and make copies for all those involved. Having a power of attorney in advance may allow you to avoid having to go to court and set up a conservatorship in the future—a lengthy, complex process.
The power of attorney can be very specific, authorizing an agent to perform only one specific task, or it can be more general, authorizing an agent to oversee all financial matters. A power of attorney goes into effect as soon as it is signed and witnessed, but the principal retains the right to manage his or her finances or health care so long as he or she is able. A power of attorney is a way of planning ahead. It might or might not ever be necessary, however if it does become necessary the principal has peace of mind knowing there is a trusted agent to handle his or her affairs.
What Rights Does a Power of Attorney Have?
The rights a power of attorney conveys is dependent on the type of power of attorney in place. Generally speaking, a power of attorney is either defined by the amount of time it is in place, or by the types of legal matters authorized. A durable power of attorney continues even if the principal becomes incapacitated. In the state of California, a power of attorney is made durable simply by adding “This power of attorney shall not be affected by the subsequent incapacity of the principal.” A springing power of attorney does not go into effect unless and until the principal becomes incapacitated, so, by its very nature, a springing power of attorney is also a durable power of attorney.
A general power of attorney gives an agent broad authority for many different legal and financial matters, other than health care decisions. A limited or specific power of attorney allows an agent to act within a specifically defined situation. As an example, suppose you will be out of the country during the time a real estate deal is closing. You can authorize an agent to represent you in this single real estate transaction; the limited power of attorney ends when the specified transaction is complete. A health care power of attorney authorizes a named agent to make medical decisions on the principal’s behalf—but only if the principal is unable to make those decisions. By its very nature, a health care power of attorney is also a springing and/or durable power of attorney.
Are There Limits to Power of Attorney Authority?
Under a power of attorney, the agent has an overriding obligation, known as a fiduciary obligation, to always make decisions that are in the interests of the principal. This is a very serious obligation, which means that just because you have the power, you may not necessarily have the right to make decisions. If the action taken by an agent is not in the best interests of the principal, then the agent does not have the right to act. This fiduciary obligation is not necessarily stated in a power of attorney document, because it is implied under the law as an aggressive restriction placed on the agent as a means of protecting the principal.
That being said, it is extremely important when choosing an agent for a power of attorney that you choose someone who is absolutely trustworthy. Your attorney can also write a power of attorney in such a way that there is some type of third-party oversight of the agent’s actions. As an example, you might give power of attorney to one child, with the stipulation that the child would be required to provide a written summary of all financial actions to another party (another child, a financial advisor, a friend, etc.).
Can a Power of Attorney Be Changed?
If, for some reason, the principal believes the agent is acting inappropriately, a power of attorney can be revoked by filling out a specific document and giving to the agent as well as all involved third parties, such as physicians or banks. If the principal is incapacitated and a third party believes the agent is not handling the affairs as the principal would have wanted, the power of attorney can be challenged.
Can Multiple Agents Be Chosen for a Power of Attorney?
When making a power of attorney, the principal can choose one agent, or can choose two, three, or even more agents. While having more than one agent for a power of attorney can provide a good set of checks and balances, in some cases it can be difficult for co-agents to agree on a specific course of action. In other instances, one of the agents may simply stop participating in the decision-making process. Either way, the dispute may have to go to court to be resolved. If the court finds that one of the agents is not acting in the best interests of the principal, it can revoke the agent’s authority.
How the Gullotta Law Group Can Help
At the Gullotta Law Group, we place a high level of importance on ensuring our clients are involved throughout the process, and that we communicate with the client to ensure we understand his or her specific needs. If you desire a power of attorney which is tailored to your specific needs, contact the Gullotta Law Group for experienced estate planning.