Power of Attorney Naming Multiple Parties as Agents May (WILL!) Present Problems

By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold, NJ Power of Attorney Lawyer

Clients often ask me to prepare a Power of Attorney. Often they have two or more children and ask if they should name both (or none) of them as attorney-in-fact. Most of the time the clients assume then children will jointly agree to make all decisions about everything together. But that’s when the clients thinking seems to stop.

A dual agent power of attorney can and generally requires each agent to agree in order to act. The easier (and I think better) approach is to allow each to act independently of the other. This approach has advantages and disadvantages. The one risk with the “either/or” approach is that one sibling acts and unintentionally (or intentionally) fails to notify the other. If a parent doesn’t quite trust one or both of the children, making them co-agents who must agree creates a checks-and-balances system that might give them peace of mind.

On the negative side, requiring them to agree might damage their relationship if they cannot see eye-to-eye. It could also be cumbersome if a quick decision is needed and one of them is not available for consultation. Another potential disadvantage: Many banks will reject a power of attorney that requires both co-agents to sign checks. With so many transactions done online and telephonically, banks find it difficult to determine if both agents are truly in agreement. You may be better off allowing each child to act independently, or name one as the primary agent and the other as the successor agent.

Seriously evaluate each child’s personality and capabilities, as well as how your plan could impact their relationship. Then discuss the issue candidly with them and with your estate planning/elder law attorney.

To discuss your NJ Power of Attorney matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com.  Please ask us about our video conferencing consultations if you are unable to come to our office.