In a general power of attorney, a principal (the person granting decision-making abilities) gives powers to an agent. General powers of attorney usually regard finances and are almost always a document separate from a healthcare power of attorney, which deals with healthcare decisions.
One or more specific people are named in each power of attorney as the “agents” or the “attorneys-in-fact.”
Of course, wills instruct the will-maker’s survivors as to whom should get what when the will-maker dies. Usually, people identified by name are nominated in the text of wills to act as executors of those wills.
Sometimes, there is significant hand-wringing for people with adult children when those people have to identify their agents and executors. Sometimes, these principals and will-makers identify agents and executors in a fashion designed to preclude hard feelings among their children. As a result, one child may be the executor under one parent’s will, while another child is the executor under another parent’s will. A desire to “include everyone” means that an adult child in California might be named as a healthcare agent, even though there are other, geographically closer family members who might do a better job, by virtue of geography alone.
Generally speaking, precluding hard feelings is not the ideal method of identifying agents in powers of attorney and executors in wills.
Attorneys-in-fact do have some discretion in decision making, but it is usually less discretion than people perceive. Further, because of the social closeness of families in Ohio, seldom do agents make decisions without consulting other family members.
Similarly, under properly prepared wills, there is often not a lot of discretion for the executors. In other words, instructions in wills are often so clear and unambiguous that executors are not making any decisions that can “short-change” anyone else in the family.
Of course, anyone, including friends, family, neighbors and acquaintances, can be nominated as executors or named as agents under powers of attorney. However, unless practically necessary, I usually discourage clients from naming their attorney (in these contexts, their attorney is me) from being their agent or executor.
Many attorneys do act as both attorneys-at-law and attorneys-in-fact for clients. However, unless immediate family, such situations are not always ideal. An attorney-at-law’s desire for an easy estate administration or a carefree agency relationship may motivate an attorney-at-law to act slightly differently than an independent agent who may be willing to “move mountains” to effectuate even the most minute details of the principal’s or will-maker’s wishes.
It is not ethically prohibited for attorneys-at-law to be executors of wills or attorneys-in-fact under powers of attorney. However, there are obvious risks of misperceptions and mistrust in such situations. Therefore, unless it is practically necessary or I am immediate family, I usually encourage clients to identify agents and executors other than me.
There are multiple ways to express love and affection for others, but naming them as agents or executors is not necessarily the best way. Trustworthy, able and inclusive family and friends serve as great executors, agents and attorneys-in-fact.
Lee R. Schroeder is an Ohio licensed attorney at Schroeder Law LLC in Putnam County. He limits his practice to business, real estate, estate planning and agriculture issues in northwest Ohio. He can be reached at Lee@LeeSchroeder.com or at 419-523-5523. This article is not intended to serve as legal advice, and specific advice should be sought from the licensed attorney of your choice based upon the specific facts and circumstances that you face.