When we meet with clients they sometimes want to name their children as co-powers of attorney. Sometimes they want to divide the workload for their children, or they could be concerned about one child travelling, or they want one child to be able to watch over another child.  Regardless of the motives, we generally DO NOT like to name co-powers of attorney. The reason is that in the event the powers of attorney had a conflict, then who is in charge?  Answer - they both are!  This could certainly be a recipe for disaster.

Our preferred method for incapacity planning is naming an agent and then his or her alternates in descending order.  For instance, you would likely name your spouse first, then your most trustworthy, responsible and local child as alternate to your spouse, then name a third or fourth alternate as well. We sometimes see incapacity planning documents that are not flexible enough as they are not able to age well. Family members may move, for instance, and your documents need to take possible future events into account.

We do, however, have one important exception to this rule. Sometimes with an aging couple, it may not be best to name your spouse as your power of attorney, or perhaps you would want to name your spouse and your trusted child as co-powers of attorney.  Here is an example of our planning:

Husband and Wife are both 88 years old. The husband is having a few memory issues but is still very competent. The wife is mentally competent but having some health issues and is not able to get around very well due to her osteoporosis. They have a trusted child who lives very close and helps matters on a weekly basis.  

In this fact pattern, we think it highly appropriate for each spouse to name each other as their power of attorney and also the trusted child. This way, due to the elder's possible future decline, both mentally and physically, we are better prepared to help take over and help them, when necessary.

As each situation is different, we will be glad to discuss your incapacity planning with you so you and your family are best prepared for the future.

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