Should Your “Attorney-In-Fact” Be The Same For Your Durable Power Of Attorney And Your Medical Durable Power Of Attorney?

If you read my “blurbs” at the beginning of our monthly elder-law newsletter you might wonder whether I am “beating a dead horse” when it comes to “powers of attorney”. “How much can you say that you haven’t said before?” you might ask. The answer is that in an elder-law and family practice, initial decisions regarding your future agents can make your estate plan work or your decisions can cause future problems for you, your spouse or your family.

Take for example the appointment of one person (eg. “my daughter, who is a nurse”) and another person (eg. “my other daughter, who is an accountant”) as your agents in the future. It might seem logical that the nurse might have the best background to make medical decisions and the accountant might be the best attorney-in-fact over business decisions. But the opposite might be true.

Your daughter the nurse may pay lip-service to your medical directives but in fact may try to act against your wishes due to her experiences as a nurse. Your daughter the accountant may pledge to act in your best interests but when the time comes may be more concerned about building an estate to pass to the next generation than to maintain the “nest-egg” for you and your spouse and to use your estate for your benefit. More importantly, your two agents may not agree. One decides that Mom needs assisted living. The other decides that the cost is prohibitive.

What to do in that case? Mediate? Open a Probate Court guardianship? Should one agent or “attorney-in-fact” be named to both positions? The job of the elder law attorney is to test the wishes of the client to ensure that “simple” questions such as these are fully explored before the plan is implemented.