A common question we hear from clients is, “Who should I choose to be my agent for my Durable Power of Attorney and Advanced Healthcare Directive?” This is an important decision, yet many people fail to take the time to consider it or discuss it in detail with the potential agent. This can lead to unpleasant consequences down the line. So how do you choose an agent?
A Durable Power of Attorney grants your chosen agent the authority to make financial decisions on your behalf even after you are incapacitated. Similarly, the agent you name in your Advanced Health Care Directive can make health care decisions for you. These legal documents empower you to control who makes decisions on your behalf, and they reduce the risk of potential abuse, giving you a sense of control and peace of mind.
The agent or attorney-in-fact must be at least 18 years old. Ideally, they should be in good health and reachable in an emergency. While people traditionally select their spouse or child as their agent, there may be other individuals who can better fulfill this duty, such as a trusted friend, a sibling, or a professional advisor. Some questions and talking points are,
- Is the person not only willing but also capable of accepting the role and fulfilling the role’s responsibilities?
- Do they understand the responsibilities of being an agent? In the case of the Durable Power of Attorney, this may involve managing finances, real estate, and acting as a fiduciary. A fiduciary is a person who is legally bound to act in your best interest, even if it means putting their own interests aside. Are they competent or are they willing to seek help from professionals to fulfil their duties diligently?
- When you discuss your values and goals with the prospective agent, do they listen and ask clarifying questions?
- Is the prospective agent trustworthy, financially and emotionally stable, organized, and committed to doing a good job? Are they struggling in their own life, and will this responsibility burden them further?
- Are they the type of person who can make difficult choices during stressful and emotional circumstances? If there is disagreement, can they handle disputes with diplomacy and compassion, but be ready to stand their ground and make the final decision based upon your expressed wishes?
- Are they open to continued conversations as life and your priorities change?
While these conversations can be difficult, they can help you choose the right agent for you and your needs and give you peace of mind.
While no document can prevent all abuse, a Durable Power of Attorney and an Advance Healthcare Directive can help reduce the risk of exploitation and ensure your wishes are heard. Contra Costa Senior Legal Services can help you draft these documents. Contact us at 925-609-7900.