Who Do I Name As My Agent Under My Powers?
Posted Nov 12, 2018 by Joan Keston
When you do a General Durable Power of Attorney you are naming someone to handle your legal and financial affairs. That person is called your Agent. When you do a Health Care Power of Attorney you are naming someone to make your medical decisions when you cannot make them yourself or communicate. That person is called your Health Care Agent.
Both the Agent and Health Care Agent are fiduciaries, meaning by law they are required to act on your behalf and not for there own benefit. However, you want to make sure that whoever is handling your financial affairs is both someone you trust and someone who will use your assets to care for you in the best way possible. You also want to make sure that whoever is making your medical decisions will be there for you and knows how you want to be cared for, particular in relation to end of life decisions regarding treatment.
More and more frequently, people are in the situation where they do not have a spouse, and maybe they have no children or the children live far away. They may also have siblings who are older than they are, or only nieces and nephews who are distant, both geographically and relationally. Who can they or should they choose?
You may find lawyers, bankers or financial advisors to act in that capacity, but that is not usually the case. Financial advisors and banks may have conflict of interest issues, and lawyers are not usually equipped to handle services of this kind.
The first thing to do is to develop relationships with care managers. They often work in the capacity of Agent or Health Care Agent. Of course they will charge a fee, but the attention and care you receive is vital. If a family member is geographically distant, you might name both the care manager and relative in your documents who can then work together to provide the necessary care.
Being involved in a church or synagogue or other religious community might also be a resource. I have had conversations with church leaders about the issue and they fear that it is becoming an increasingly present social issue in our country.
Fortunately there is an added resource. It is The Corporation of Guardianship (CoG) located in Greensboro, NC. CoG is a non-profit organization providing person-centered guardianship and supported decision-making services for people with diminished capacity who have no family or friends available to them. They do not just handle special needs or guardianship. They will also serve in the capacity as Agent under a Power of Attorney and more recently added the service of Health Care Agent. Their brochure is under the Related Resources on this website, www.kestonlaw.com. They can be reached at www.corpguard.org or 336-273-5389. Keston Law is not affiliated directly or indirectly with CoG, but our firm often recommends the organization to clients.
It is much better to be pro-active and develop relationships to find an Agent and Health Care Agent that you can appoint in your documents. If you do not have these documents and you become incapacitated, most likely a Guardian would be appointed to care for you. This is handled by the Clerk of Superior Court in the county where you reside. It is a legal proceeding resulting in the appointment of a Guardian who would then handle the functions that normally could be done with the in the Powers mentioned above.
We often assist clients with their Powers and fiduciary choices. Visit our website to learn more or attend one of our free seminars. Contact us at www.kestonlaw.com or 910-509-7121.