In an earlier discussion, we talked about what it means to be an attorney in fact, but we didn’t offer any guidance about what you might say if someone asks you to be an agent. If you are asked to be an agent, also called an attorney in fact, what should you say? What will you need to do if you accept, and what will happen if you decline? Today we’re going to look at some of these questions to give you a better idea about what you need to think about if you are ever asked to be an agent.
Who Can Ask You to be an Agent?
When a person, known as a principal, chooses to create a power of attorney, that person can select anyone to serve as his or her agent. An agent, like a principal, must be of sound mind and must be willing to serve in the role. In other words, no one can force you to serve as an agent if you do not want to be one.
An Agent’s Duties
Before you choose to accept or decline the offer to become someone’s agent, you should understand the duties and responsibilities of the position. Every power of attorney document is different. The document itself will determine what rights and responsibilities the agent has to make decisions on behalf of the principal.
Let’s say your brother creates a health care power of attorney and names you as his agent. What are your responsibilities?
The medical (or health care) power of attorney is there to ensure that someone has the legal ability to make health care decisions on the principal’s behalf if and when the principal becomes unable to make those decisions himself. Your brother is asking you to make health care decisions for him when he is unable to make them himself. This might require you to review your brother’s medical history, talk to your brother’s health care providers, and communicate health care decisions to those providers that will affect your brother’s health.
If your brother asks you to be an agent under his financial power of attorney, you may be required to make decisions about your brother’s finances. You might have to pay his bills using his money, manage his property, or do anything else that the power of attorney document requires.
Accepting or Declining the Appointment
If you agree to serve as an agent under power of attorney, you accept the legal obligation to make decisions not only on behalf of the principal, but to do so only to ensure that person’s best interests. You cannot use or misuse your position to better yourself or take advantage of the principal in any way.
So, if someone asks you to serve as an agent, you need to decide whether you can and will carry out the duties required of you. If you choose not to serve, the principal will need to find someone else to act as his or her agent.
For additional information, please join us for an upcoming FREE seminar. If you have additional questions or concerns about how to respond if you’re asked to be an agent, contact an experienced estate planning attorney at Parman & Easterday by calling 405-843-6100 (in the Oklahoma City area) or 913-385-9400 (in the Overland Park area) to schedule your appointment today.
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