Factors to consider when selecting an agent or personal representative

In this article I will review factors that I recommend you consider when selecting an agent, (in a durable general power of attorney and a healthcare power of attorney), and a personal representative in a will. Please consult with an attorney of your choosing when preparing these documents.

The powers, responsibilities and accountability of an agent and personal representative are spelled out in the provisions of the powers of attorney/ will and in the statues governing them. In my opinion, the combination of appropriately worded documents and the guidance set forth in the laws give sufficient direction to the agent/personal representative in order to protect the interests of the principal and testator. Even so, there most likely will be circumstance when the agent/personal representative will be called on to exercise discretion in this role.

For better or worse the applicable laws in Pennsylvania dealing with these documents provide only minimal requirements for agents (essentially anyone 18 or older) and personal representatives (certain legal entities are permitted and certain criminal convictions will disqualify a person). My experience is that many people will choose their spouse or closest relative based solely on that relationship. A parent will often feel “obligated” to name all their children, jointly, as agent/personal representative even though the children do not get along with one another or some of them live far away.

Because this is such an important appointment, I recommend that you take the appropriate time to evaluate the situation and select 1) someone you trust, 2) someone with an interest in your well-being, 3) someone who will be able to perform and 4) someone who possesses a basic level of competence to handle the responsibilities of the position. I encourage clients to discuss the matter with every person the client is considering designating as part of the evaluation process. While applying these criteria may lead you back to a spouse or closely related person you should ultimately choose the person or persons you feel is/are best suited for the role.

Depending on the circumstances, the appointment of multiple persons to serve jointly may be appropriate. I have found this to be especially beneficial in a general POA so that the agents can “share” the responsibilities and cover for one another. Caution- You should only name multiple persons when you think that they will work cooperatively.

After you have named a person as agent/personal representative, please confirm they are aware of the appointment and the responsibilities they have in that role. Take time to discuss with them your thoughts and wishes concerning your care, your finances and other subjects that will be helpful to them in performing the position you have named them to. Please be aware that as principal of a power of attorney you have the right to remove and replace a person serving as agent, but the termination of the appointment must be in writing and delivered to the agent in order to be effective. If circumstances change and a person is no longer suited for the role you have designated them for, you should select another person and revise the document as necessary.