Yes, you can name more than one person on your durable power of attorney, but our law firm generally advise against it under most circumstances.

First, there is no legal reason why you cannot name more than one person as your power of attorney - you can name 10 people if you want. The real question is should you name more than one person? The answer is generally no, unless you have a specific reason and considered the potential problems. The reason why we do not advise more than one is in the event of a conflict. With multiple named attorneys-in-fact, there is always the ability for people to conflict on decisions. Conflicts may mean paralysis as each decisionmaker can overrule the other and the only way out would typically be a guardianship proceeding.  Who is in charge with multiple powers of attorney if a conflict occurs? Answer: no one (or everyone)! We prefer to name one person at a time in descending order - i.e., start at your spouse and move to children in order of priority or what have you. 

There is, however, a great exception to this rule: when you have an aging couple, it may be best to name your spouse and a responsible child as attorneys-in-fact. This will help in the event either parent is incapacitated and needs help through the durable power of attorney. An example is as follows:

Mom and dad are age 90 and having a few health issues and memory problems.  They are both acting independently and are in charge of all decisionmaking.  Due to their advanced age, however, they name their trusted and responsible son/daughter as co-power of attorney so he/she can step in and help when or if they have a problem at the same time. We also granted independent signature powers so they can act alone. Our planning in this situation is far preferable to the parents just naming each other because of a possible downturn at or around the same time.  This can help prevent crisis situations and stress for the family, to say the least

Consultation with a good attorney may help you figure the right way for your own situation, of course.  If your children travel and are all trustworthy, for instance, then naming children and co-attorneys-in-fact with independent signature power can be just fine.  If you do not do things the right way, the power of attorney may not be able to prevent a guardianship, so think about things thoroughly!

What about Co-Health Care Surrogates?

Also, while you are here, you may want to think about your advance directives (health care surrogate and/or living will). Remember, your power of attorney is for financial and legal decision making while your health care decisions are subject to your advance directives. Now, we do not want you to name co-health care surrogates - that is generally a bad idea. You do not want co-surrogates to make decisions on your end-of-life decision making.

Making it Easier on your Children?

Sometimes people think about spreading the potential burden around been family members, and that can be helpful in the right situation. For instance, you name your financially savvy daughter as your power of attorney but your son who is in the medical field as your designation of health care surrogate. This way, one can pay the bills while the other can do all the doctor/care management work. A lot of factors go into the decisionmaking of who to choose as your health care surrogate.

How does a Living Trust Work?

Planning with a revocable living trust is very common in Florida. A trust is an excellent way to avoid probate and prepare for your incapacity and can be recommended under a variety of situations.  Learn more about how durable powers of attorney interact with revocable living trusts here.

Why use an attorney to help with your incapacity planning?

Your incapacity planning may be the most important estate planning decision you make and you should not use on-line forms to assist you. Simply put, the training a good elder law attorney receives, plus the experience of working with elders on a daily basis, cannot be replaced by forms. Do not put your faith in on-line forms!

We hope this post has been helpful!  Please let us know if you have any further questions or want to attend one of our free estate planning or elder law seminars. You may also want to download my free book, the Top 20 ways to Protect Your Florida Estate.

D. Rep DeLoach III
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Estate Planning and Board Certified Elder Law Attorney