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Legal Q & A Series: Estate Planning/Powers of Attorney

Legal Q & A: Estate planning

“My mother made me her agent on her health care power of attorney. Now my brother is showing me a power of attorney making him the agent. Is that legal?”

It all depends on whether your mother, by her choice, executed a new power of attorney (POA) making your brother her agent instead of you. If she did it, and that is what she wanted, then it is perfectly legal. A person has the right to sign powers of attorney, modify them, revoke them and sign new powers of attorney at any time – as long as she has legal capacity and knows and intends what she is doing.

The purpose of a health care POA is to designate a person who can make health care and personal decisions if the signer of the POA is unable to make them herself. The inability may be temporary (during surgery, while in a coma, etc.) or permanent (as when Alzheimer’s or dementia sets in).

It is possible your mother has done two powers of attorney that say different things. The question becomes: which one does she intend to be the effective one? The best practice when doing a new POA is to find and destroy the old one and copies of it as well. People do not always think to do that. Having more than one POA, especially when they conflict with each other, is a recipe for confusion or even litigation.

Powers of attorney do not convey rights; they convey obligations. The obligations of an agent are fiduciary. That means that an agent having power of attorney is subject to the highest standard of duty in the law.

A fiduciary has the legal obligation to protect the principal (in this case your mother), to look out for her best interests and to do what is right for her. A fiduciary must never exercise the authority given for the fiduciary’s own self interest. Fiduciaries who advance their own interests, even if they also advance the principal’s interest, may violate the fiduciary duty, which also may have criminal ramifications.

Powers of attorney can also be given with immediate authority that runs concurrent with the principal’s own decision making capacity. In that case, the agent can make decisions for the principal only as long as the principal does not override them. The agent can also have access to information that would otherwise not be made available, due to privacy laws, and therefore be able to discuss the principal’s health care and personal care with the principal’s health care and personal care providers.

The POA documents should describe the authority being given, including the scope and the limitations. Being an agent pursuant to a power of attorney is a weighty obligation and not one to be taken lightly. With the delegation of authority comes a very significant obligation to do what is purely in the best interest of the person who created the power.