If you are appointed to act under a power of attorney (POA), you have an enormous responsibility. If the principal (the person who appointed you) becomes incapacitated and unable to act for him or herself, you take over their financial affairs. In most situations, you can pay bills, open bank accounts, withdraw funds, cash checks, trade stocks, and other similar financial activities. You are trusted to what the principal would want you to do.
One of the primary issues in dealing with powers of attorneys is sibling rivalry. If your parents appointed you as their agent under their power of attorney to the exclusion of your siblings, then conflicts can arise. Each sibling may think he or she knows best how to handle their parents' financial affairs.
Here are some things to keep in mind if:
- You have been appointed as the primary agent under your parents' power of attorney over your siblings
- If you intend to appoint one child as your sole agent under your power of power of attorney and not their siblings.
Considerations When Choosing One Child as Power of Attorney in Tennessee
When you have several children, there may be one that stands out as more trustworthy and responsible than the others. However, that even if this child is the best option for your power of attorney, conflicts may arise. The appointment of one child can nurture distrust and bad feelings among the excluded siblings.
Keeping everyone informed will be key to breaking down any distrust and avoiding conflicts. Here are some considerations to know and to communicate:
- Access to the Incapacitated Parent. When the parent becomes incapacitated and the power of attorney takes effect, other children should not be barred from visiting their parents. The only time barring access would potentially be appropriate is if the child is physical or mental health threat to the parent or the child is attempting to scheme or steal money from the parent.
- Right to information. Ultimately, the parent does not have to disclose to friends and family who he or she named as their agent under the power of attorney. If the agent is an adult child (or another family member), the child is not obligated to provide information about the parent to his or her siblings (or other family members).
- Limits on the Powers of a Power of Attorney. A power of attorney designation does not enable the agent to do whatever he or she wants. An agent cannot change the principal's will; breach his or her fiduciary duty; or change or transfer the power of attorney designation to someone else, like another sibling or family member.
- Power of Attorney Expires at Death. When the parent dies, the power of attorney ends and the executor of the estate – appointed by either the principal or the court – takes control over the decedent's property.
- Revocation of a Power of Attorney. The parent can revoke who she or he has appointed as the power of attorney. The revocation must be in writing and the former agent power of attorney should be advised of the revocation.
- Removal of a Power of Attorney. Upon the disability of the principal, however, the power of attorney can no longer be revoked unless family members believe the power of attorney is acting improperly. Revocation is not automatic – the family member must file a petition in the appropriate Tennessee court to challenge the power of attorney and/or to remove the agent as the power of attorney. If the court agrees that the agent has acted improperly or the power of attorney is invalid, the power of attorney appointee is removed and a conservatorship may be ordered.
Keeping these points in mind when appointing or acting as a power of attorney can go a long way to ensuring rights and interests are safeguarded.
Ways to Avoid the Potential for Conflict Among Siblings
Even if the above considerations are disclosed to all children, conflict can still arise. One child may be resentful that he or she was not chosen. Another child may not trust the chosen sibling to act according to the parent's wishes. Just knowing that a power of attorney can be challenged in court is often enough for a sibling to act on his or her distrust or resentment. To minimize confrontations, as the principal appointing the power of attorney, you can consider alternative solutions:
- You can designate co-agents in the power of attorney document. Although appointing two persons can be problematic if the agents themselves cannot get along. You could create separate responsibilities for each agent, but that can be unwieldy and still can lend itself to conflict.
- Name a non-family member as your primary decision maker. Do not designate family members as powers of attorney – you can instead choose a close friend, professional fiduciary such as a bank, or your attorney.
Choosing the right person to manage your assets and affairs can be difficult. Similarly, actually managing and acting as an agent is an even bigger one. Avoiding conflicts and court involvement is important to ensure you – as the principal – have your wishes upheld.
The Key Takeaway
When a child is appointed as power of attorney for parents, any other siblings could become resentful. Communicating what is involved and what it means to all children will be an important factor in avoiding conflicts. But if conflicts are inevitable, you may want to think about other options. Always consult with an experienced attorney in Clarksville to make sure you create an estate plan that is best for you and your family.