We frequently advise clients that having the right documents in place, such as general durable powers of attorney and health care powers of attorney, helps to protect your assets in the event that you cannot make decisions on your own. However, how well your documents work will depend entirely on how well you have selected your agent (attorney-in-fact). Your agent will have the authority to make important decisions about how you will live, where you will live, what support you will receive, as well as how to protect your family in the event that you are unable to do so yourself. Consider carefully who you want to carry out your wishes, whether during your lifetime or after your death.
When choosing your agent, know that no two situations are alike. Some of the guidelines that follow may not apply to your unique circumstances. First, you must ask yourself whether you can absolutely trust the person you are considering. If you can’t answer that question with certainty, then you must move forward carefully. Sometimes you’re better off with no agent at all than choosing the wrong agent.
Many clients ask whether they should choose a family member. Naming your spouse as your trusted agent is advisable if you believe that he or she will do what’s in your best interest. However, if you are not sure that your spouse will do what is in the best interest of your children (if you have any from a previous relationship), then you may want to name your spouse and a trusted child as co-agents. There are many who would traditionally choose the oldest child to act as their agent. Rather than focusing on age, consider your children’s personality traits. If the oldest child is the most trusthworthy, the most intelligent, and the most financially responsible, then he or she will make a good choice. Finally, consider how your children get along. If you have a child who doesn’t have a great relationship with his or her siblings, naming that child as your agent could potentially cause problems.
There are also certain characteristics that you should avoid when choosing your agent. You may not want to choose someone who has an alcohol problem, a drug addiction, a gambling addiction, someone who is going through a divorce (until they get back on their feet financially), someone who has creditor problems of any kind, or someone who has a judgment against them. These characteristics indicate that the person may not be able to handle their own finances and therefore should not handle yours. Instead, you should choose an agent who is honest to a fault, completely trustworthy, loving, and empathetic. Search for someone who will do the right thing at all times with no questions asked.
Finally, you can put certain provisions in your documents to protect yourself. For example, you can insert provisions in your trust agreement or your power of attorney that your agent in fact must file annual accountings. Requiring your agent to file annual accountings with a beneficiary or trust protector is an important part of oversight for your protection. Filing an accounting is not a hard task, as most people use software to keep up with their bank accounts. These accountings provide oversight to those with authority, who can in turn examine your investments and bank statements to determine if money has come out of your accounts. Then, if any unauthorized funds have disappeared, your beneficiaries will know about it.
If you or your loved one needs assistance with your powers of attorney, or if you have questions about other government assistance programs such as Medicaid or Veterans Benefits consider W.G. Alexander & Associates – we offer a unique blend of asset protection, Elder Law and estate planning. You can also attend our free seminars, learn more through our website at www.wgalaw.com, or call us at (919) 256-7000. Also, every Tuesday morning at 9 am, you can listen to our radio show, “Asset Protection Today,” on Talk Radio 850 WPTK (AM) with Attorney Bill Alexander.