Your biological relatives include your parents, children, brothers, sisters, aunts, uncles, nieces, nephews, and cousins. You did not get to choose any of them. They just landed in your life by happenstance, fate, or demonic trickery. You can see the result.
By contrast, you do get to choose your agents. With a little planning, they, not your relatives by chance, will walk with you down the path of aging. It is therefore important that you choose your agents wisely.
What is an Agent?
Agents fall into two categories: financial and medical. The type of category correlates with the characteristics your agent should show.
Financial Agent
The financial category includes your executor [named in your will], trustee [named in your trust], agent [named in your durable financial power of attorney], and guardian of the estate [named in your designation of guardian]. It also includes agents you have named for specific purposes, such as accessing your bank safety deposit box.
Before you name someone as a financial agent, you should consider whether they can perform the necessary duties. To serve as an executor or guardian, the person must not be disqualified by law from being appointed by a court. That wipes out convicted felons, people with bad reputations, and people who owe you money. There are no qualifications required by law for a trustee or an agent under a power of attorney, but it is generally a bad idea to name an agent with the same problematic history: a convicted felon, a bad reputation, or your debtor.
All financial agents should be honest, dedicated, and organized. They have statutory duties to account to you for how they manage your money and other assets, so a basic knowledge of a financial program such as QuickBooks or Excel is helpful. They should have the time and willingness to serve as your agent. Bonus points are given if they have a track record of successfully running their own business or making investment decisions about their own assets.
Medical Agent
The medical category includes your agent [named in your medical power of attorney], your authorized person [named in your HIPAA release], and your guardian of the person [named in your declaration of guardian]. Of those, only the person’s guardian must not be disqualified as a matter of law.
The qualities you are looking for in a medical agent are very different from those of a financial agent. They should be readily available, have a working knowledge of medical terms, be willing to follow your wishes regarding medical care and have enough gumption to stand up for you against the medical community. Politely, of course.
For both types of agents, you should check with them first before you name them on a document. Discussion points should include their terms of service, your plans to give them access to information, and their willingness and ability to serve. An involuntary agent is sometimes worse than not having an agent.
Who Should Be an Agent?
It is fine to name a relative or spouse as your agent. You should always name at least 2 backup agents, in case your original choice of agent does not work out.
Naming co-agents is a very risky action, for them and you. Co-agents must work together. If they disagree, then the entire document may become unworkable. Sometimes their disagreement could even lead to litigation or personal liability. Co-agents are seldom happy agents. Because of their high failure rate, some attorneys refuse to draft documents that name co-agents, and some judges refuse to appoint co-executors named in wills.
The choice is yours. Choose wisely.
Hammerle Finley Can Help You With Your Agent Choice
To ensure that you select the right type of agent, you may need to hire an attorney to help you with your estate planning. Contact the experts at Hammerle Finley Law Firm today.
Virginia Hammerle is an accredited estate planner and represents clients in estate planning, probate, guardianship, and contested litigation. She may be reached at legaltalktexas@hammerle.com. This blog contains general information only and does not constitute legal advice.
