Comprehensive estate planning includes helping you to name agents in power of attorney documents to step in and manage your affairs in the event you become incapacitated. Often when choosing these agents, different individuals are selected to fill different roles. You may name one person to serve as your agent under a health care power attorney while choosing another person as the agent under a financial power of attorney. These two agents may not always agree on the best course of action and these conflicts can lead to serious problems.
Both of these agents play very important roles in that they make decisions on your behalf when you are not able to do so for yourself due being incapacitated. Incapacitation is determined by a medical professional and may be the result of an accident, illness, dementia or other issue preventing you from being able to make decisions in your best interests. Because these chosen individuals now must coordinate both health care needs and manage your financial affairs, it works best when the two individuals work harmoniously as a team. Any disagreements that arise between the two agents can drain resources and delay care.
The agent under a financial durable power of attorney has no obligation to disclose financial matters to anyone other than you, the person for whom he is acting as the agent. There is no legal obligation to disclose financial information to the counterpart agent designated under the healthcare power of attorney. The problems arise when the healthcare POA needs assets released for medical care and the financial POA refuses to provide those assets.
For example, the health care agent may want to find ways to provide in-home care while the financial POA may see limited resources available and think that a nursing home is a better option. If the two cannot agree that leaves you in limbo until the conflict can be resolved. Any disagreements may ultimately have to be settled through litigation.
The first step is to review the power of attorney documents to determine what conflict resolution strategy is required. It may be that the documents themselves spell out a solution for conflict – such as requiring mediation. If conflict resolution is not spelled out in the documents themselves, then the only solution may be to petition the probate court to resolve the dispute. This will be expensive and time consuming.
Some tips to avoid this scenario –
- Consider choosing the same person to serve in both roles. Only do this if the person chosen is trustworthy, has your best interests in mind and has the skillset necessary to competently serve in both roles.
- Have specific conflict resolution strategies incorporated into one or both of your power of attorney documents. Experienced estate planning attorneys will offer solutions and include the necessary language.
If you find yourself embroiled in a conflict, contact the skilled attorneys at Stouffer Legal in the Baltimore area for assistance. You can schedule an appointment by calling us at (443) 470-3599 or emailing us at office@stoufflerlegal.com.
