Death, and possibly incapacity, will reach all of us at some point. Therefore, we must make the appropriate preparations, including completing our estate planning documents. The most common and important documents are the last will and testament or trust, power of attorney, and health care directive. One of the most difficult parts of the process for my clients is selecting the correct representative to serve in each role. Below are some considerations to take when selecting representatives for each of these positions.
Financial and legal decisions during an incapacity:
A power of attorney appoints a representative to handle our affairs for us on a broad scale. It is a very powerful document, and the obvious primary concern is appointing someone you trust. Remember, you will most likely not be completely competent when using this document, so appointing an individual you trust is paramount.
It is also advisable to select someone who lives near you. Handling someone’s affairs from a distance can be difficult as it is really a hands-on experience. Therefore, if you can appoint someone who lives near you, it would make the job easier and more effective.
Finally, I always advise my clients to appoint multiple powers of attorney who can act independently of one another. As you may imagine, a lot of time and effort is involved in managing a person’s affairs. Therefore, it does seem to work best if the workload is distributed among multiple people so that no one feels too overwhelmed.
This document appoints someone to make a medical decision for you if you are unable to do so yourself. Most everyone appoints their spouse as the primary person and an alternate.
The real question is who to appoint as the successor representative. If you are fortunate enough to have a person in the healthcare field as a family member, then the choice may be easy. For the less fortunate, it should be a compassionate person with the skills necessary to be able to discuss your situation with treating physicians and make the right decision on your behalf.
This is not the time for group decisions. We recommend picking a succession of individuals instead of having co-representatives. Having more than one agent could cause an issue if they both do not agree on the best way forward.
Personal Representatives and Trustees:
Most likely, a spouse will be the primary appointment, whether that be as a personal representative under a will or a trustee of a trust.
If you have chosen to complete a will document, it is best to discuss your choice of an alternate with an attorney beforehand because restrictions can vary from state to state. For example, In Florida, an out-of-state resident cannot be a personal representative unless they are related to you.
Distance or proximity to you or your home state should not be a factor. Most probate and trust administration can be handled electronically, so physical presence in the decedent's state is unnecessary.
You need to select an individual who not only has the aptitude but also the time to perform the administration you will require. Time is a key factor because a significant amount of work is involved in every estate.
Finally, since most estates involve handling money and assets to a certain extent, it is critically important you appoint someone with the morals to carry out your objectives.
It is imperative to select the right agent that fits each unique position. They may be the same person or different people as your situation dictates. Remember the above factors when making your decision, and you will be on the right track.