You Can Just Say No: Declining to Act as an Agent Under a Power of Attorney

Acting as an agent under a power of attorney is a big responsibility and it isn’t something everyone can take on. It is possible to resign or refuse the position.

There are two main types of powers of attorney – financial and medical. As the agent under a power of attorney, you act in place of the “principal” – the person executing the power of attorney — for financial or medical purposes when and if that person ever becomes incapacitated. This can be a big job, depending on the person you are representing. 

With a financial power of attorney, you are responsible for taking whatever investment and spending measures the principal would take himself or herself. Unless limitations have been placed in the power of attorney document itself, you can open bank accounts, withdraw funds from bank accounts, trade stock, pay bills, and cash checks. In addition, you need to keep good records of all your dealings. 

With a medical power of attorney, you must step in and make medical decisions for the principal that you believe the principal would have wanted. For example, you may have to make decisions about whether to start or stop a particular treatment, which doctors or specialists to choose, or whether to continue or stop life support. 

While an agent under a power of attorney isn’t personally liable for the principal’s bills, it is still a huge responsibility that takes time and effort. Before agreeing to be an agent under a power of attorney, consider whether you are able to devote the time and energy to the job and whether you can emotionally handle making the decisions. In addition, think about if there are family issues, such as constant disagreements among siblings, that would make serving difficult. 

If you do not want to serve as an agent under a power of attorney, the best thing to do is have an honest discussion with the person executing the power of attorney. You can simply tell them that you are not the best person to act in this role. If you have already been appointed and you decide you want to resign, the power of attorney document may specify the steps necessary. If these steps aren’t spelled out, the best thing to do is write a letter tendering your resignation, and send it via certified mail to the person who executed the power of attorney and any co- or successor agents.

If the person who executed the power of attorney is incapacitated already, it is a little more complicated. Ideally, the power of attorney document has named successor agents. In that case, you can refuse the job and the successor agent can take over. If there are no successor agents, a guardian may need to be appointed for the principal. An interested party — another family member or friend — could petition the court for guardianship or if no one is available to take on the job, the court may appoint a public guardian.

When you are naming an agent in a power of attorney, it it important to discuss your wishes  in advance with the agent you intend to select to assure that person is willing and able to serve. Even if the person agrees to serve, they may later notify you they wish to resign or be removed from the position. In that case it is advisable to consult with your attorney to assure that the resignation is properly documented as well as the acceptance by the new successor agent. Powers of Attorney are an important part of an effective estate plan. Our team at Wenzel Bennett & Harris can assist you in assuring that your power of attorney is up to date with a least one back-up agent in the event the first agent becomes unwilling or unable to serve. Call us at (989) 356-6128 to schedule a consultation.

If you have specific questions about your situation or would like to learn more, reach out to the team at WBH here.

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