A power of attorney is one of the most important estate planning documents, but when one sibling is named in a power of attorney, there is the potential for disputes with other siblings. No matter which side you are on, it is important to know your rights and limitations.
What Is a Power of Attorney?
A power of attorney (POA) allows someone to appoint another person — an "attorney-in-fact" or “agent” — to act in their place — the “principal” — if the principal ever becomes incapacitated.
Note that each state will have specific rules for the format, content, and provisions of POAs. For example, in some states, you may be able to name one person as your agent, or more than one person. Your agent(s) will have the power to handle affairs for you, including carrying out bank transactions, signing agreements on your behalf, or dealing with your creditors.
There are also rules regarding what your agent’s legal responsibilities are. For instance, they must act in your best interest. They are required to share any relevant documents with the co-agent or successor agent. And they must avoid any conflicts of interest, among other duties.
Types of Powers of Attorney
There are two types of powers of attorney: financial and medical.
Financial Power of Attorney
Financial POAs usually include the right to open bank accounts, withdraw funds from bank accounts, trade stock, pay bills, and cash checks. The financial power of attorney could also include the right to give gifts.
Medical Power of Attorney
Medical POAs allow the agent to make health care decisions. In all these tasks, the agent is required to act in the best interests of the principal. The POA document explains the specific duties of the agent.
POA Among Siblings
When a parent names only one child to be the agent under a power of attorney it can cause bad feelings and distrust. If you are dealing with a sibling who has been named agent under a POA or if you have been named agent over your siblings, the following are some things to keep in mind:
- Right to information. Your parent does not have to tell you whom they have chosen as their agent. In addition, the agent under the power of attorney isn't required to provide information about the parent to other family members.
- Visitor access to the parent. An agent under a financial power of attorney should not have the right to bar a sibling from seeing their parent. A medical power of attorney may give the agent the right to prevent access to a parent if the agent believes the visit would be detrimental to the parent’s health.
- Revoking power of attorney. As long as the parent is competent, they can revoke a power of attorney at any time for any reason. The parent should put the revocation in writing and inform the old agent.
- Removing an agent under power of attorney. Once a parent is no longer competent, they cannot revoke the power of attorney. If the agent is acting improperly, family members can file a petition in court challenging the agent. If the court finds the agent is not acting in the principal’s best interest, the court can revoke the power of attorney and appoint a guardian.
- The power of attorney ends at death. If the principal under the power of attorney dies, the agent no longer has any power over the principal’s estate. The court will need to appoint an executor or personal representative to manage the decedent’s property.
If you are drafting a POA document and want to avoid the potential for conflicts, there are some options. You can name co-agents in the document. You need to be careful how this is worded, or it could cause more problems. The best way to name two co-agents is to let the agents act separately.
Another option is to steer clear of family members and name a professional fiduciary.
Sibling disputes over how to provide care or where a parent will live can escalate into a guardianship battle that can cost the family thousands of dollars. Drafting a formal sibling agreement (also called a family care agreement) is a way to give guidance to the agent under the power of attorney and provide for consequences if the agreement isn’t followed.
Even if you don’t draft a formal agreement, openly talking about the areas of potential disagreement can help. If necessary, a mediator can help families come to an agreement on care.
To determine the best way for your family to provide care, consult with your attorney. Find a qualified attorney near you.