Co-agents in a power of attorney (POA) are agents who have the authority to act at the same time. Even though the vast majority of states allow you to nominate co-agents in your power of attorney, most estate planning attorneys do not recommend doing so. In this article, we discuss the top 3 reasons why you should avoid appointing co-agents in a power of attorney.
Reason # 1 – Naming co-agents multiplies monitoring responsibilities
When you grant someone a power of attorney, you give them the ability to make legally binding decisions on your behalf.
In a financial power of attorney, you are giving your agent a license to buy, sell, and make other decisions with your property (including your money) whether or not you are able to act for yourself. Absent any specific limitations you impose on your agent’s authority, your agent by default can make almost any non-medical decision you yourself could make, with the exception of certain trust and estate powers that your agent will only receive if you specifically authorize them to do so.
Although your agent has a legal duty to act in good faith and in your “best interest,” that obligation still leaves room for error and bad actors, whether intentional or unintentional. You’ll want to monitor and periodically evaluate your agent’s decisions to ensure that your agent is acting in accordance with your instructions and desires. Naming multiple agents as co-agents multiplies your monitoring responsibilities, and it can also make assessing who is primarily responsible for certain decisions more difficult.
Reason #2 – Your co-agents may not all be readily available
If your co-agents are not all readily available, their ability to make decisions on your behalf may be delayed and debilitated, which could lead to inferior outcomes.
Although you can partially mitigate this risk by empowering co-agents to act severally (i.e., independently), that still doesn't resolve potential disagreements between two co-agents who are both present with differing opinions on the decision that would best fit your interest.
Reason #3 – Your co-agents may not agree on the best course of action
While you are less likely to face delays in decision making if you empower your co-agents to act severally vs. requiring them to act jointly, this strategy opens the door to inconsistent actions among your co-agents. If that occurs, the effectiveness of any one decision path may be diminished.
To mitigate against those potential inconsistencies, you could require your agents to act jointly and specify a method of dispute resolution when all your co-agents cannot agree on the proper course of action. However, that dispute resolution process may add unnecessary time and cost to decision-making, impeding the effective use of the power of attorney. You are especially susceptible to this result if your co-agents do not share close physical or philosophical proximity.
What should you do instead of naming co-agents?
Rather than naming co-agents, the Uniform Law Commission recommends naming one original agent under your power of attorney and one or more successor agents. This strategy avoids the potential disputes, delays, and inconsistencies that may come with naming co-agents.
If your original agent is unable or unwilling to serve, your successor agents will step in. If the original agent is only temporarily unable to serve, you can specify in your power of attorney that the authority granted to your agent includes the ability to delegate the agent’s authority during periods when the agent is temporarily unavailable to serve.
