When you act as an agent under a power of attorney, it’s important to consider the principal’s family. Learn how to fulfill your power of attorney obligations to the principal’s family members.
What Is a Power of Attorney?
A power of attorney (POA) is an arrangement that gives a selected agent the authority to make decisions on the principal’s behalf. The agent agrees to act according to the principal’s terms and best interests. A family member, a legal professional, or a trusted adult may serve as the agent. The principal should record their desired authorities and limits for the agent. A POA ensures the principal’s affairs are handled when they are no longer able to act for themselves.
Can the Agent Keep the Principal’s Family Away With a POA?
An appointed agent may have the right to exclude family members if the principal has specifically instructed them to do so in the agreement. As with most aspects of a power of attorney, whether the agent has this power depends on the principal’s recorded wishes. If the POA doesn’t include exceptions or directions for family members, the agent must then fulfill their obligations to the family as they act in the principal’s best interests.
Power of Attorney Agent’s Obligations to Family Members
When the agent acts on the principal’s behalf, they should also consider their obligations to the affected family members. Communicating with the family, keeping records, and maintaining confidentiality can help ensure the smooth execution of powers of attorney and reduce disputes.
Communications
Extend clear, accurate, and open communication with the principal’s family members. This communication ensures the family can voice concerns and understand your actions and intentions. Inform family members and the affected parties throughout the following decisions:
- Selling real estate property
- Selling sentimental or valuable items
- Hiring caretakers or third-party help
- Considering legal actions
- Authorizing medical care
Additionally, written records create transparency and can serve as evidence in disputes or legal proceedings. Keep documents such as bank statements, medical records, and sale or purchase forms for accurate and reliable communication.
Confidentiality
While it’s essential to share information with family members, there are certain elements that an agent must keep confidential. Information that should remain private includes:
- Personal financial information
- Medical information protected by HIPAA
- Private or protected legal matters
- Sensitive information (like details about an inheritance disagreement) that could harm the principal or their family
Fiduciary Duties
Under the terms of a power of attorney, the agent has a fiduciary duty to the principal. This means that they must always act in the best interests of the principal. This duty applies to all financial, medical, and legal decisions. In many cases, the agent’s fiduciary duty includes an obligation to the family, since the family’s well-being often aligns with the principal’s best interests.
Family Member Considerations for the Principal
The principal can also take proactive measures to outline the agent’s obligations to family members throughout the creation of the power of attorney’s terms. Through regular communication with the family and updates to the POA’s terms, a principal can protect their family members and ensure the agent considers their needs.
Communicate With Family
The principal should hold an open conversation or meeting with the family and their chosen agent. By communicating the intended agent, terms, and limits for a POA, the principal can address concerns and explain their decisions before the agreement takes effect. The principal and agent should also regularly communicate with the family to explain changes to the POA and the included authorities.
Draft the POA
The principal can draft, review, and edit the POA multiple times to outline the agent’s obligations to the family. When writing a POA, the principal can increase protections for their family by following these guidelines:
- Choose the agent carefully
- Consider all desired terms
- Pay attention to details and legal compliance
- Provide statements granting or limiting authority for each specific action
- Include additional health care and end-of-life documents, such as Legal Templates’s living will or advance directive
Update Your Terms
As the principal’s life circumstances change, the terms of the POA may also change. Performing regular reviews and updates of a POA ensures it accurately reflects the principal’s wishes and the family that needs to be considered. The principal should update their agreement terms after significant life changes, such as the following:
- Medical diagnoses
- Purchases of real estate or valuable assets
- Marriage or divorce
- Birth of a child
- Relocation to a different state or country
- Death or incapacity of the previously named agent
Prepare in Advance
As the principal, you can set your expectations upfront by writing a power of attorney and other documents. Review our estate planning checklist to complete essential estate planning tasks.
Can Family Members Override a POA?
Generally, family members don’t have the power to override a power of attorney. However, they can pursue a legal petition to revoke the POA if the agent is abusing their authority or failing to meet their fiduciary duties. In this case, the family members must gather and present to the court strong evidence of misuse, neglect, or misconduct by the agent.
If the court agrees with the petition or finds fault with the agent, the POA will be revoked. At this point, the principal can appoint a new agent if they’re of sound mind; otherwise, the court may select a new agent, called a guardian or conservator, depending on their role.
