Page 55 - Senior Link Magazine Winter 2024 - Online Magazine

SENIOR RESOURCES SENIOR RESOURCES

POWERS OF

ATTORNEY and AGENTS

by Lee Franks

s an elder law attorney, With my clients, I emphasize the should name at least one alternate,
I consider both financial word “agent” because in this context, ideally two or more.
Apowers of attorney and agent is synonymous with “servant.”
medical powers of attorney necessary Some readers may wish to refer to the In the case of a financial power of
components of good estate planning, “Parable of the Talents” as told in the attorney, the “statutory durable
and I strongly encourage everyone Bible in Matthew 25 and Luke 19. Of power of attorney” being the most
who can to execute them as soon as course, this modern arrangement is common, the relationship between
possible after turning eighteen years voluntary; the principal can fire the principal and agent tracks closely with
old. Of course, it is never too late–until agent or revoke the power of attorney their relationship under a medical
it is. for any reason, and the agent may power of attorney. However, the
resign at any time. Nevertheless, statutory durable power of attorney
Among those who have done them, so long as the agent accepts the also imposes fiduciary duties on the
or at least have heard of them, I notice responsibility, the agent serves the agent. These duties require the agent
that they often confuse the term principal. Consequently, the agent is to 1) act in good faith, 2) do nothing
“power of attorney” with “agent.” For never “over” the principal; the agent beyond the authorities granted, 3) act
example, I commonly hear someone cannot prevent the principal from loyally to the principal’s benefit, 4)
say, “I’m Mom’s power of attorney,” or making bad financial decisions nor can avoid conflicts of interest that would
use the very misleading phrase, “I am the agent force the principal to take an impair the agent’s ability to act in the
power of attorney over Dad.” Neither aspirin or to enter institutional care. principal’s best interest, and 5) disclose
correctly states the proper relationship Only guardians have such authority clearly and in writing when the agent
between the person who signs the and then only under court supervision. is acting for the principal.
power of attorney, the principal, and
the person named in the power of Under a medical power of attorney, The key take-away here is that no
attorney, the agent. unless the principal is incompetent, one is a “power of attorney,” and no
the agent has only the authority to power of attorney grants an agent
In general terms, a power of attorney is obtain medical information from authority “over” the principal. Rather,
a document in which the principal, the and consult with the principal’s a principal may execute a power of
person signing the document, names caregivers. Only if the attending attorney naming an agent to serve the
an agent, to act for him or her and then physician certifies in writing that the principal and granting (or sharing
specifies the authority the principal principal is incompetent may the agent with) that agent certain authority or
is giving to (sharing with, really, as make medical decisions based on the powers to act. In discussing these
the principal can take it back at any principal’s wishes or in the principal’s powers, the agent may say, “Mom
time) the agent and any restrictions on best interests. Notably, the authority to has given me power of attorney,” or
the agent’s ability to act or to exercise obtain information and consult with “I am Dad’s agent,” but it is incorrect
that authority. Note well that a power caregivers, unless explicitly granted (and misleading) for the agent to
of attorney is not a person, but a in the document, does not extend to indicate that he or she has power
document. alternate agents named in the power of “over” anybody by virtue of a power
attorney—and every power of attorney of attorney.

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