Saying “No” to the Power of Attorney Duty
Does the thought of being a parent’s or senior loved one’s power of attorney (POA) fill you with dread? Maybe Mom thinks you’re the best choice because you live in the same town, while your sister lives two states away. Designating you as POA just makes sense. Or does it?
“Becoming someone’s power of attorney is a monumental job,” says David. “It’s huge, and the task should not be entered into without great thought.”
A Power of Attorney Duty
A power of attorney is a legal instrument that names at least one person to make business, financial or medical decisions for someone who is unable to make those decisions on his or her own. The person named power of attorney is referred to as the “agent” or “attorney-in-fact,” and the person for whom they are acting on behalf of is known as the “principal.”
There are myriad combinations and varieties of power of attorney. Here are the two most common:
- General durable power of attorney, also known as power of attorney for finances, allows the named agent to act on behalf of the principal to handle that person’s finances such as banking, paying bills or selling a house
- Healthcare or medical power of attorney authorizes the agent to make healthcare decisions in the event the principal is incapacitated
Many people worry that if they’re named as an agent on a POA, they’ll end up owing money for the principal’s unpaid medical bills. That’s a common misconception, says John Ross, an elder law attorney in Texas. “People don’t always realize that they’re just acting on behalf of another person, not making themselves personally liable,” says Ross.
Still, there are plenty of other reasons a person may want to decline being named power of attorney.
How Roles Can Change Over Time
One of David’s clients came to her office feeling both guilty and overwhelmed. Years earlier, her mom named the daughter, who was single at the time, as power of attorney. After her mom became incapacitated due to a stroke, the weight of the daughter’s new responsibility was more than she could carry.
“She’s a loving, caring daughter who takes her mother’s needs seriously and feels responsible about honoring her mother’s request,” says David. “However, her present responsibilities don’t allow her to properly serve as her mother’s POA.”
Fortunately, Mom had named her other two children as successor agents, in case the daughter couldn’t fulfill the duty. A brother was in a better place in his life and had time to take over the POA role. The daughter renounced her position, and everyone left David’s office feeling better.
“While she felt incredibly guilty about not taking this job, I let her know that based on what’s going on in her life, adding a task of this magnitude wasn’t practical,” says David. “It’s very likely that if her mother could weigh in, she would have been the first to relieve her daughter of this task.”
Saying “No” to Power of Attorney
There are many situations where taking on the POA responsibility is not ideal.
For example, a dad may appoint his son, who lives out of town, but that son thinks his sister, who lives near dad, is a better choice. However, the sister may work 60 hours a week and doesn’t have the time that acting as POA requires. Or, mom wants you to be her financial POA but you’ve got a long history of financial missteps and overdue payments.
Ross recommends asking yourself some hard questions when considering whether to commit to being someone’s power of attorney:
- Are you able to drop everything, perhaps for weeks or months, and make crisis medical decisions?
- Do you have the emotional fortitude to make tough, life-and-death decisions?
- How is your family dynamic? Do you have a brother who is quick to anger or a sister who could be suspicious of your motives when it comes to medical or financial decisions?
If you’re not up to the task, and the person who appointed, or plans to name, you as POA is still capable, it’s best to talk directly with that person about your trepidation, says Ross.
“Be honest and let them know that if something happened to that person today, you’re not in a position to do this,” says Ross.
Hopefully, your loved one’s power of attorney was – or will be – drafted with alternates in case the designated agent can’t serve. “I usually tell people to have as many alternates as people that you trust implicitly,” says Ross.
The possibility of a POA not being able to serve is “highly likely,” says David. “That’s why attorneys typically name numerous successor agents. We intentionally build such alternates into a POA to cover the inability, or inevitability, that someone may not be able to serve.”
If you don’t want the POA responsibility, and no one else wants to commit, you might suggest setting up an agency arrangement with a bank. In that situation, a bank will take on basic bill paying and some financial matters when a person becomes incapacitated.
Your loved one can also set up a revocable trust and name the bank that person does business with as a successor trustee. An attorney can even set up the POA so that a designated adult child can fire the bank in case of incompetence or other problems, says Ross.
If you really don’t want to be power of attorney, you need to be honest with your loved one or friend. In the end, everyone will be better off.
“Tell that person, ‘I’m concerned about you enough to tell you that I’m not the right person,'” says Ross.
Have you had to say “no” to the power of attorney duty? What was your experience like? We’d like to hear your stories in the comments below.
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