When you consult with an estate planning attorney, you will probably have financial matters first and foremost in your mind. While this financial component is important, you should also include an incapacity component.
Many people become incapacitated before they pass away. They may not be able to make their own decisions. This possibility is typically accounted for by the execution of a legally binding document called a durable power of attorney.
The Agent or Attorney-in-Fact
When you execute a durable power of attorney, or any power of attorney for that matter, you name an agent or attorney-in-fact. This is the person that will be empowered to act on your behalf.
Who may act as an agent? Because the role is alternately referred to as attorney-in-fact, you may wonder if you have to choose a licensed lawyer. The answer is no. From a legal perspective, you are allowed to select someone from any walk of life to act as your agent or attorney-in-fact when you create a power of attorney.
You have wide latitude with regard to your ability to select an agent under a power of attorney. Your agent must be an adult, and your agent must be of sound mind. The agent must also be willing to serve in the role.
While there are few restrictions with regard to who could possibly act as an agent, you can ask yourself another question: what type of person should act as your agent?
Choosing the Right Agent
When you are selecting someone to manage your affairs in the event of your incapacitation, you are giving this person a great deal of responsibility. Clearly, you want to name an agent who is completely trustworthy. Your agent should have a good bit of business savvy, and have no conflicts of interest if possible.
Different members of your family are going to care about the way that your affairs are being handled by the agent. For this reason, you should appoint someone that your family trusts and respects.
In addition to the personal qualities of the agent, there are some practical matters to consider as well. Let’s say that your brother would be the ideal agent. He is two years older than you. Will he definitely be alive and capable of handling the responsibility when you are a senior citizen?
There is also the matter of the agent’s availability and geographic location. If you live in Oklahoma City and your agent lives in New York, there can be a distance problem. It is better to choose an agent who lives nearby so that he or she can act on your behalf on an ongoing basis simply and easily.
Blaine Peterson
Author, Attorney
Parman & Easterday
Since founding Parman & Easterday in 1985, Larry has led over 1,000 free, community-service education programs and helped more than 10,000 Oklahoma families go from putting off their estate plan to getting it done. His goal for every client is the same: to become the person their family calls "the one who took care of everything."
Larry is the author of three books: The Straight Shooter's Guide to Estate Planning; Estate Planning Basics; and Guiding Those Left Behind in Oklahoma. He served as Oklahoma's Secretary of State and Secretary of Commerce, and his firm is the only member of the American Academy of Estate Planning Attorneys in the state.
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