When a person, known as the principal, creates a financial or medical power of attorney, she may name two agents and state whether the agents can act alone or must act together as co-agents. If co-agents can't agree, what happens next depends on whether the principal is incapacitated or able to make decisions.
Power of Attorney Types
An agent on a financial power of attorney completes the principal's financial transactions, including banking, real estate deal paperwork and whatever else the principal allows. The principal may limit the agent's authority to specific transaction types or give her broad authority. An agent on a healthcare power of attorney makes medical decisions for the principal only if he can't make the decisions himself. For example, if the principal is in a car accident and unable to communicate, his agent's authority would take effect; she would make medical decisions for him. Some states, including Illinois, only allow for the creation of a power of attorney for healthcare. Other states, including New York and California, use healthcare proxies or consolidated directives that include a medical power of attorney. States that do not use powers of attorneys for healthcare at all or alone will accept medical powers of attorneys from other states as long as the power of attorney document complies with the laws of its creation state.
If co-agents on a financial power of attorney do not agree and the principal is mentally competent and not physically incapacitated, the principal's decision prevails. He may revoke an agent's authority if she won't carry out his wishes, but still allow the other co-agent to act. Rules for a power of attorney revocation vary by state. If the principal physically destroys the power of attorney document or tells others he's revoking an agent's authority, his actions may revoke the authority in his state. If he decides to revoke the power of attorney orally, he may need an adult witness to sign a witness statement affirming the witness heard the oral revocation, depending on state laws. The principal may write a revocation statement indicating that he is revoking the agent's authority, sign the statement and have it notarized. He should then keep the original statement, but delivery copies to both agents as well as anyone who has the power of attorney on file.
If the principal can't make his own decisions and the co-agents can't agree, the co-agents can petition the court with jurisdiction over the matter and have the court decide. In most states, the surrogate or probate court handles financial and medical power of attorney disputes. The probate court may change the power of attorney, remove an agent's authority or mediate the dispute until the co-agents reach an agreement. The court usually won't remove an agent's authority unless it appears the agent is not acting in the principal's best interest.
A financial or medical power of attorney document may address what happens if co-agents can't agree by providing dispute resolution rules. If the document has resolution rules for a dispute, the agents must follow those rules. State laws may cover what to do if co-agents can't agree in specific situations, but laws vary and do not cover every situation. To avoid problems, rather than name co-agents to work together, a principal may name and grant authority to one agent at a time, in order of priority. In such a case, the first person named acts alone, but if that person dies, becomes incapacitated or is otherwise unavailable, the next person named as agent acts alone.
- New York Times: Altering the Power of Attorney
- Southern Illinois University: Durable Power of Attorney in Illinois
- Elder Law Answers: Resolving Conflicts Between Co-Agents on a Power of Attorney
- New York State Department of Healthcare: Filing a Health Care Proxy in the Medical Record
- Law Offices of Natalie J. Kaplan: Ten Questions and Answers on Health Care Proxies