Naming Alternates and Co-Attorneys-in-Fact

As you give some thought to who to name as your attorney-in-fact, you'll also need to consider whether you want to name more than one person to serve and who should serve as alternates in case your first choice cannot do the job.

• Appointing More Than One Person
• Make Decisions Together or Independently
• If There Is a Disagreement
• Naming Three or More Attorneys-in-Fact
• If One or More Cannot Serve
• Naming Alternates

Appointing More Than One Person

In general, it's a bad idea to name more than one attorney-in-fact, because conflicts between them could disrupt the handling of your finances. Also, some banks and other financial institutions prefer to deal with a single attorney-in-fact.

Still, it is legal to name more than one person—and we allow you to name up to three people to serve together. But if you're tempted to name more than one person simply so that no one feels hurt or left out, think again. It may be better to pick one person for the job and explain your reasoning to the others now. If you name more than one person and they don't get along, they may wind up resolving their disputes in court. The result might be more bad feelings than if you had just picked one person to be attorney-in-fact and explained your choice in the first place.

Make Decisions Together or Independently

If you name more than one attorney-in-fact, you'll have to grapple with the question of how they should make decisions. You can require coagents to carry out their duties in one of two ways:

• they must all reach agreement before they take any action on your behalf, or
• they may make decisions independent of one another.

Both methods have strengths and pitfalls, and there's no hard-and-fast rule on which is better. Choose the approach that feels more comfortable to you.

Requiring your attorneys-in-fact to act jointly ensures that decisions are made carefully and with the knowledge of everyone involved, but coordinating multiple decision makers can be burdensome and time-consuming. On the other hand, allowing your attorneys-in-fact to act separately makes it easy to get things done, but allowing two or three people to make independent decisions about your finances can lead to poor record keeping and general confusion. For example, your attorneys-in-fact may independently take money out of your bank accounts or buy and sell stock without full knowledge of what the others are doing to manage your investments.

If There Is a Disagreement

If your attorneys-in-fact get into a dispute that interferes with their ability to represent you properly, they may need help working things out. Getting help could mean submitting the dispute to mediation or arbitration—or going to court to have a judge decide what's best. Your attorneys-in-fact can decide how they want to handle the matter, keeping in mind that their foremost responsibility is to act in your best interest. The downside of all this is not just that there could be confusion and delays in handling your finances, but that you'll probably be the one to pay the costs of settling the dispute. All these are reasons to name just one attorney-in-fact.

Naming Three or More Attorneys-in-Fact

The best approach is usually to choose just one attorney-in-fact. But Nolo's Durable Power of Attorney allows you to name up to three people to serve together. Asking two or three people to manage your finances may prove unwieldy enough—counting on more than three to coordinate their actions on your behalf would be a logistical nightmare. If you want to name more than three attorneys-in-fact, talk with a lawyer.

If One or More Cannot Serve

If you name more than one attorney-in-fact, the person you name as a first alternate will take over only if all of your attorneys-in-fact must give up the job. If any number of your first choices can continue to serve, they may do so alone, without the addition of your alternate.

If you name a second alternate, that person will take over only in the extremely unlikely event that all of your named attorneys-in-fact and your first alternate cannot serve.

Naming Alternates

It's a good idea to name someone to take over as your attorney-in-fact in case your first choice can't serve or needs to resign. Nolo's Durable Power of Attorney allows you to name up to two alternate attorneys-in-fact, officially called successors. Your first alternate would take over if your initial choice can't serve. The second alternate would take the job only if your first and second choices can't keep it.

When naming alternates, use the same criteria that you used to make your first choice for attorney-in-fact. Your alternates should be every bit as trustworthy and competent. If you don't know anyone you trust well enough to name as a first or second alternate, skip the matter altogether.

Someone who is asked to serve as an alternate attorney-in-fact may be worried about possible liability for the acts of the original attorney-in-fact. To protect against this, your power of attorney will state that a successor attorney-in-fact is not liable for any acts of a prior attorney-in-fact.

You can also authorize your attorney-in-fact to appoint someone to serve if all those you named cannot. You do this by giving your attorney-in-fact permission to delegate tasks to others. Allowing your attorney-in-fact to delegate his or her job to someone else eliminates the risk that the position might become vacant because of the original attorney-in-fact's disability or resignation. If this occurs, and you haven't named a successor or none of your successors are available, your durable power of attorney would be useless. There would have to be a conservatorship proceeding to find someone to manage your finances.