Considerations on Naming Children as Co-Agents

“Can My Kids Be Co-Agents?”

This is one of the more common questions we get asked when we work with families to complete their Advance Medical Directive and Financial Power of Attorney.

When clients designate their initial Health Care Surrogate or Financial Agent, the instinctive choice is to designate a spouse.

But what about a backup if your spouse is unavailable to act for you? The instinctive choice at that point is to think of your children.

But what if you have more than one child? Then the instinctive question is often “Can my kids be co-agents?”  Or “Can my kids be co-health care surrogates?”

The answer is an unequivocal yes – children “can” be co-agents or co-surrogates. But the more nuanced answer is an answer with a question: “Should your kids be co-agents?”

There are Two Approaches to Co-Agency but Only One is Workable

When nominating children as co-Agents, you can require them to act unanimously or you can permit them to act unilaterally.

We nearly always recommend permitting unilateral action. Requiring unanimity/joint action is simply not workable.

• What if one of your nominated Agents lives at some distance?
• Do you want to require both of your nominated Agents to be at the hospital by your bedside the entire time?
• Do you want to require both of your nominated Agents to go to the bank together? To sign off on each and every check?
• What if there is a deadlock between your nominated Agents? Deadlock when unanimity is required means gridlock.

For these reasons, we always do recommend when naming children as co-agents to permit them to act unilaterally as opposed to requiring unanimous or joint action.

But is Co-Agency The Right Choice?  

Even if you can appoint co-agents and permit them to act unilaterally, the question still remains: Should you? 

In thinking about the answer to this question, we encourage our clients to step back and, as objectively as possible, consider the following questions.

• Do your kids unfailingly communicate openly and honestly with each other?
• Can your kids cooperate and collaborate with each other at all times?
• Can both of your kids handle stress well, bearing in mind that they would be acting in a stressful and emotional time?
• Do your kids see each other as equals?
• Do you feel more comfortable having more than one person with the authority to act for you?
• If one of your children acts quickly without consulting with the other, will the child who did not act be relieved that his/her sibling was there to act?

If the answer to all of these questions is “yes”, then co-agency may be a good solution for you. If the answer to some or many or all of these questions is “no”, then you may want to reconsider co-agency.

We encourage clients to remember that the situation in which you are making your estate planning decisions is often a far cry from the situation when these documents will actually be used. An Advance Medical Directive or Financial Power of Attorney will often be used in a stressful or emotional situation. And you likely won’t be able to offer guidance about your intentions because you will be sick or disabled.

Can I Still Include My Children In a Document If I Don’t Want Co-Agents?

In a word – YES!

The alternative to co-agency is a “line of succession” approach.

Rather than having multiple co-Agents named, you will designate one initial agent (usually your spouse).

Following your spouse, you will have one child designated as the successor Agent. You can designate another child as the second successor Agent.

Each child will see their name in the document. But you are creating a situation where the “buck clearly stops” with one designated Agent. That designated Agent is of course free to receive feedback from siblings and other family members. But ultimately it is that one designated Agent — and only that one designated Agent, who will have final say.

Concluding Thoughts

Working through decisions like these are one of the most important aspects of advice and counsel that an estate planning attorney can offer. At Bulman Dunie, we recognize that no two families are the same and you know your family better than we ever will. Our job is to just provide you all of your options and the “pros” and “cons” of each approach. Reach out to estate planning attorneys Liz Farley at lfarley@bulmandunie.com or  (301) 656-1177 x316 and Jeremy Rachlin at (301) 656-1177, or jrachlin@bulmandunie.com any time if we can help you work through your estate planning questions.