Designating someone to act on your behalf using a power of attorney (POA) document is a serious decision. While POA can be given to anyone, individuals usually choose a trusted family member to handle the responsibly of making health and/or financial decisions for them. Aging parents often name an adult child as POA, but this can be a highly contentious move in larger families and those with complicated sibling dynamics. Squabbles over who is best suited for this role can be a nuisance, but they can also develop into bitter legal disputes.
Power of attorney documents are a crucial part of planning for future health care needs and financial decisions, but it is important to understand how these legal documents can be drafted and the effects they can have on family relationships.
Common Factors in Deciding Who to Name as POA
There are several different practical matters that factor into deciding who is best equipped to serve as POA. For some parents, the decision is cut and dried. Many automatically put their faith in their oldest child or choose the son or daughter who lives closest.
Taking each child’s individual skills and levels of trustworthiness and dependability into consideration is also crucial, especially when it comes to entrusting one of them with the ability to make financial decisions. For example, Diana Anderson, a certified elder law attorney practicing in Toms River, N.J., says clients have told her they’ve made this decision by ruling out adult children who “can’t even balance their own checkbooks.”
Some parents have it a bit easier when their children’s individual professions confirm their capabilities in managing health decisions and/or finances. “When it comes to medical POA, if a child is a nurse or doctor, that child is often chosen because they’re more attuned to health care issues. If a child is a financial planner or an accountant, they may be named as financial POA,” notes Ronald Fatoullah, a certified elder law attorney and founder/managing attorney of Ronald Fatoullah & Associates located in New York.
In still other cases, parents may not be confident in any of their children handling these tasks. They may resort to naming someone outside the family, such as a close friend or even a professional third party, as POA.
Potential Problems Naming Joint Agents or Co-Agents as POA
Adult children typically don’t want to take control of a parent’s medical or financial decisions unless they must. Serving as a loved one’s POA is not an easy or simple job. Still, feelings are easily hurt when one child is chosen over another for the job. Regardless of whether the parent makes this decision rationally and shares their reasoning, the implication is that non-POA children are considered a poor fit in some way.
Fortunately, there are ways of distributing these responsibilities among siblings to avoid arguments and ill feelings. Of course, there are two kinds of POA: one for medical decisions and one for financial decisions. In some cases, one person holds both powers. Granting each of these legal responsibilities to two different children may be a way to avoid disputes, but it is important to understand that they must still work as a team. It is very difficult for the healthcare POA to hire long-term care services if the financial POA has a tight grip on the parent’s savings and income.
One option that everyone should consider when drafting a POA document is naming consecutive agents. This means that if the primary agent is unwilling or unable to fulfill their responsibilities as POA, then a secondary (then tertiary, then quaternary, and so on) agent will be able to legally step in to manage the principal’s affairs. Naming consecutive agents may not go far to improve sibling dynamics since they are listed in order of preference. However, this measure serves as a legal contingency plan and greatly improves the likelihood that a trusted person will be able to handle decisions even if something unexpected happens. (It is not uncommon for the primary agent and caregiver to fall ill or pass away before their parent, so it is important to have a legal “Plan B” in place that allows another agent to assume the role quickly and smoothly.)
Another possibility is to name co-agents in the POA document. Co-agents have equal decision-making abilities, which may be appealing for families who are looking to diffuse tensions. BUT there are drawbacks to this approach. Laws vary by state regarding whether co-agents can be named and how they can make decisions, so it is important to consult with an elder law attorney who is familiar with the laws of the state in question.
Ideally, the agents would work together regardless of the law to manage a parent’s medical and/or financial affairs, but that is easier said than done for many families. If the co-agents are granted joint powers of attorney, then they cannot act independently and must make all decisions together. This poses serious issues if the agents do not get along or have trouble coming to agreements. On the other hand, some states allow a POA document to be written so that co-agents can act independently of each other. Again, this can pose issues if they are not on the same page.
The POA Decision and Family Aftermath
Even if the appointment of POA is smooth and didn’t involve much fuss initially, that doesn’t mean bickering isn’t a possibility once the agent officially begins managing a parent’s affairs. Siblings who disagree with a POA’s actions can cause strife within the family and even create huge legal challenges for one another. Below are a few of the most common disputes elder law attorneys see over power of attorney designations.
Questioning the Validity of the POA Document and Actions of the Agent
A person must be competent in order to appoint an agent to legally act on their behalf. Drafting a POA when a principal is not capable of understanding its function and meaning is illegal. While it is important to ensure no one is exerting undue influence on a senior in order to obtain POA, many disgruntled family members have accused legitimately named agents of taking advantage of their frail or confused parents. If these suspicions are well founded, then it is imperative to notify the proper authorities and ensure the principal is in safe hands.
However, if these accusations are rooted in jealousy or dissention rather than concern over questionable legal and/or ethical practices, the agent can still end up in hot water even if they have played everything by the book. If accusations are reported and no wrongdoing has transpired, the entire family endures a long and stressful investigation (and possibly an expensive trial) that merely results in more ill feelings toward one another.
Ongoing sibling rivalry can chip away at the power that an agent holds and cause adult children to argue over everything from small details to significant long-term decisions. When the siblings don’t trust the person named as POA, what Anderson often sees happen is constant questioning about their decisions. One or multiple siblings may always appear to be on the agent’s back, challenging each and every choice they make, she says. This can be utterly exhausting for the adult child who is simply trying to do the best for their parent(s). Such an arrangement can affect the POA’s decision-making abilities and also puts undue emotional stress on parents.
Unwillingness to Follow the Principal’s Wishes
An agent has a legal responsibility to act in the best interests of the person they are representing, even when it comes to making difficult medical and financial decisions. This includes things like following a Do Not Resuscitate (DNR) order and selling the family home to fund long-term care.
“If an agent does not follow the principal’s wishes, that individual can be sued,” Fatoullah cautions.
In one case, Anderson recalls that an adult child who was granted power of attorney for health care refused to comply with her mother’s living will, which stipulated a desire not to use certain life-sustaining measures. The POA’s sibling challenged the legality of this decision and at a bedside hearing, it was determined that the POA was not acting in the mother’s interests. The request in the living will to withdraw life support was fulfilled.
Inheritance is a huge motivator for spats between siblings, and issues can arise regardless of whether the principal is still alive or has already passed. For example, siblings may vehemently oppose using a parent’s funds to pay for long-term care because it will reduce their inheritance, causing discord.
Another more serious situation may develop when siblings accuse the POA of mismanaging funds, especially after the parent has passed and they realize they are receiving a smaller bequest than was expected. This financial battle can quickly escalate and wind up in court to prove whether a POA has acted legally in managing the principal’s affairs. If the POA has acted illegally or unethically and the principal is still alive but incompetent, the other siblings may seek legal guardianship.
Siblings frequently protest when an agent seeks payment for their time and services as well. This can happen if a POA document is written to include these terms of service and compensation and when agents who were not paid for their services try to recoup some of these expenses from the parent’s estate after their passing.
“When one child spends more time taking care of a parent and feels like they should be entitled to more, they can give themselves more within reason,” Fatoullah says. But, of course the other siblings may not think it’s fair, since POA compensation directly affects their cut of the inheritance.
When the POA Is Not the Hands-On Caregiver
Lastly, issues often arise when the person who has been appointed POA is not actually the individual providing regular care. For example, it can be frustrating, if not downright impossible, to effectively manage Mom’s care when you’re living with her and helping around the clock, but your sister is the one who has the legal authority to make medical and financial decisions. A great deal of resentment breeds in scenarios like these, especially when POA siblings are not frequently witnessing a parent’s health status and care needs in person. Respite care is often something that is denied to the hands-on caregivers by POA siblings who manage things from a distance because they do not feel it is necessary.
Even if the decision over granting power of attorney isn’t emotional, things can take a turn when the situation becomes more serious. These are just a few of the common scenarios that family caregivers may experience. It’s vital to discuss personal wishes with loved ones early on, put them in writing using legal documents like powers of attorney, advance directives, and wills, and understand how these legal tools work. Attorneys agree that resolving sibling rivalries and fostering trust among family members can help avoid feuds over financial and medical decisions, prevent costly court battles and facilitate teamwork in caregiving.