A dual power of attorney or joint power of attorney is a legal document that gives rights and power to two named persons. These persons are referred to as agents or attorneys-in-fact, and they have the right to manage the financial affairs or make health care decisions for the principal, the person who grants them their authority and rights. The powers are shared by both agents, and they can both exercise their powers at the same time. Any documents executed on behalf of the agent must be co-signed by both agents, and financial decisions must be agreed upon by both. Family members such as siblings or spouses are often designated as agents in a dual power of attorney, but professionals may also act as joint agents to prevent one individual from breaching his or her fiduciary duties.
The requirement that both agents agree to all decisions made on behalf of the principal can be problematic. There is no third agent to break the tie and choose one decision over another. As a result, a dual power of attorney can be written to allow agents to act independently. The principal has to expressly state that the agents can act on their own, and it may involve delineating specific powers for each agent. The agents still remain jointly responsible to the principal, but each has the freedom to exercise control over his or her assigned financial or health care matter.
Joint agents of a dual power of attorney are jointly responsible for carrying out their duties. When they are allowed to act independently, they are jointly and severally responsible. That means that if a court holds them liable for breach of fiduciary duty and awards damages to a plaintiff bringing an action, each agent must pay a share or the entire damage award.
Dual agents often have the same powers as those named in a single power of attorney. They may be authorized to convey legal title to property, negotiate and enter into contracts, and make payments to creditors. For example, agents may sell real estate investments owned by the principal as part of a strategy to pay for the immediate needs of the principal. A medical dual power of attorney grants rights to the agents to make medical decisions on behalf of the principal. Such rights may include consent to medical treatment to be performed on the principal, the right to apply for and obtain medical benefits, and the right to hire health professionals to care for the principal.
Can Two Siblings Have Power of Attorney
Yes, parents may appoint two siblings as power of attorney. The law allows for dual power of attorney and does not restrict families from assigning two siblings to the role. The option may prove beneficial for several reasons, including maintaining a good family environment and sincere affection for one another during difficult times.
For many parents, this decision centers around avoiding friction down the road. Sibling rivalry is real, and it happens throughout life. One child may think the other gets more attention. The child might constantly seek a parent's attention. Each family is unique and different, but they do experience disagreements and rifts. Giving both siblings a role then makes them feel included and important.
It's often hard for one sibling to become the dominant decision-maker. The other one might feel left out, differences in opinions could cause a rift and it could create a display of favoritism. Making two siblings co-agents could be a way to avoid such conflict and emotional strife.
In making this choice, parents have options. It doesn't have to be two people in charge of everything. When formalizing legal documents, consider separating roles. One sibling might control the financial ends while the other manages medical needs. Dividing roles could alleviate fights.
In addition, be clear and precise in your power of attorney agreement. Specify any expectations and word things well to avoid ambiguity or confusion. This step could minimize friction. Furthermore, lawyers may create a sibling agreement where parents dictate how they want people to act.
Before making this decision, think carefully about how the siblings behave with each other and collaborate well. Have open conversations about personal desires and wishes, making sure that final wishes remain clear and understood from the beginning. Communicating this information ahead of time could reduce potential concerns.
Can a Person Have Two Power of Attorneys
People may have as many power of attorneys as they would like. The law does not prohibit someone from selecting two power of attorney. The choice to divide roles or have a team make the decisions has many benefits and negatives, so it's important to consider the decision carefully before finalizing any documents.
When more than one agent exists, the principal party receives input from multiple perspectives. This avenue might encourage discussions and overviews, reducing problems and errors. If someone can no longer live alone and living arrangements must be made, the two power of attorneys might evaluate the situation together. They should closely consider which new arrangement meets the principal's interests. In this way, a double-check exists to monitor future environments and medical choices.
In addition, two people may have vastly different backgrounds. What if one friend understands money better than a close relative? However, the other relative might grasp the personal beliefs in medical options or living arrangements. Both people lend significant and essential backgrounds. Alone, the principal loses valuable input. Putting these minds together could be a better option. These two agents could work together as mentioned above or the power of attorney may be divided between the two, assigning different tasks.
Personality remains a factor in how things play out. If co-agents have an equal share of responsibility, they must agree on their choices. Otherwise, chaos may set in with the principal player losing out. Splitting the roles is a viable solution to reduce this delay and frustration. Things connect, though, and there will be times both people may require conversation. The double power of attorneys may complicate matters.
How Is a Dispute Between Two Power Of Attorneys Handled
Keep in mind that more than one power of attorney sounds helpful; however, if these arguments occur, it's going to make life hard, stalling valuable decisions. Instead, consider naming one power of attorney and the other as secondary. If the primary agent becomes unable to follow through, the backup takes charge, ensuring someone is always in there.
If the co-agents cannot find a resolution together, the argument will require intervention from an outside source such as the courts. Most likely, a probate court judge will evaluate the initial planning documents and listen to the different sides. The officer of the court may make the final decision. Furthermore, the judge has the right to alter the power of attorney or find someone else who can do it without a delay or struggle. During this time, the principal person must wait for a determination. This situation could prevent appropriate care.
Who Can Override a Power of Attorney?
If the principal, the person who has given power of attorney to someone, decides that they no longer wish to grant power of attorney to that person, they may be able to revoke it themselves. There are many reasons why this may happen, most relating to changes in the relationship between the principal and the person with power of attorney; however, to do this, the principal must be of sound mind.
There are occasionally situations in which the principal is not able to remove power of attorney, but other close family members feel that it still needs to be overridden or changed. This may be because the interests of the principal are not being properly represented through the current agreement or because of complications that have occurred with the person who currently has power of attorney. There are actions that can be taken in these instances, even if the principal is not able to make changes.
The Override Process
If the agent who holds power of attorney is not making decisions that are in the interest of the principal, they can be removed from their position. It is best to work with a lawyer to send them a formal request to relinquish their position. If this doesn't work, the situation may need to be taken to court. If at all possible, having the principal's support in terminating the agent's power of attorney can be invaluable.
Most power of attorney agreements have built-in constraints that can lead to them being terminated automatically. There may be an agreed-upon amount of time that the agent can hold power of attorney, or there may be one specific task they are meant to do to fulfill and finish the agreement. Additionally, if either the principal or the agent passes away, the agreement will be terminated.
Does a Power of Attorney Need To Be Notarized?
The laws and regulations regarding power of attorney are slightly different from state to state. It is important to do research into your specific area. Often power of attorney will need to be recorded in a written format that is notarized as well as signed by the parties involved. Depending on where you are, you may also need to have one or more witnesses present at the time the document is finalized.
Not all states require notarization, but most do require some form of written documentation. Using the right documentation is essential for avoiding confusion and administrative issues when it comes time to exercise the power of attorney. In many states, you can choose between using a notary or two witnesses to add legitimacy to the document.
Can Two Siblings Have Power of Attorney?
It is common for two or more siblings to share power of attorney over an elderly parent. This can help avoid fighting or resentment between family members, as it is a more even distribution of control between the parents and children. Whether this is a good fit for your situation or not is dependent on your unique family dynamic. In some cases, there may be siblings who prefer not to have power of attorney and are more comfortable trusting a single sibling to have it.
A good way to decide what is best is to have a sit-down conversation with the people involved. Removing power of attorney from someone can be difficult if the principal becomes incapacitated. The decision to give someone power of attorney can be a sensitive matter, and it is best to avoid conflict early on by getting your family's input from the start.
Setting Up an Agreement With Multiple Siblings
Power of attorney agreements involving multiple siblings are completely legal, but they are more complex to create than a simple power of attorney between a principal and one agent. It is important to make sure that the legal documentation is set up correctly. Getting help from an attorney can help ensure that everything is arranged for the agreement to function as it should. There is more than one way to set up a joint power of attorney agreement, and the one chosen has a big impact on what powers each person in the agreement has.
For a power of attorney that is shared among siblings, you will likely need to choose between the siblings being co-agents or being joint agents. If the siblings are co-agents, they will each be able to make decisions for the principal on their own. In a co-agent agreement, they will all need to be in agreement for the decision to be made. Again, the best way how to decide which way will work best for your family is to talk about it in advance and make sure that everyone is on the same page.
Frequently Asked Questions
What is a dual power of attorney?
The dual power of attorney is a legal document that allows two individuals the right to represent you in financial and legal concerns. It allows another person or individuals to make decisions and act on your behalf if you cannot do so. Agents, or attorneys-in-fact, are the individuals designated to act on your behalf.
How does a dual power of attorney work?
A dual power of attorney permits two individuals to act as your decision-making agents. The agreement specifies the scope of each agent's authority, which typically includes the authority to make financial choices, such as paying bills, accessing bank accounts, and managing investments. It may also include the ability to make legal and medical decisions, like signing contracts and filing lawsuits.
What is the difference between a single and dual power of attorney?
A dual power of attorney grants authority to act on your behalf to two individuals. But a single power of attorney only confers authority on a single individual, so you may need to appoint a new agent if they are unavailable.
The dual power of an attorney has the added advantage of handling things if one agent is unavailable.
What should I consider when choosing agents for a dual power of attorney?
When choosing agents for a dual power of attorney, you should choose people you trust completely to make decisions for you. You should discuss their abilities and limitations with them to determine what kind of decisions they can make. You should also analyze the relationship between the two agents and whether or not they can work together if one is unavailable.
When should I use a dual power of attorney?
A dual power of attorney is usually used when you can't take care of your own finances and legal matters, like when you're sick or away from home for a long time. You should only use the dual power of attorney under these circumstances.