Declining to Act as an Agent Under a Power of Attorney

Takeaways

• A power of attorney (POA) is a legal document that allows an individual (the agent) to make decisions on behalf of another person (the principal).

• There are two main types of POA: financial and medical.

• If you are considering serving as an agent under a POA, it is important to carefully consider whether you can adequately fulfill the role.

Acting as an agent under a power of attorney is a significant responsibility. Certainly, not everyone can – or wants to – take on this particular role. Thankfully, it is possible to resign or refuse the position.

Types of Powers of Attorney

The two main types of powers of attorney (POA) are financial and medical.

An individual (the principal) may name you as the agent under a POA. This means you would act on their behalf if they became unable to handle their own affairs. Depending on the person you are representing, you may feel a great deal of pressure to carry this job out well.

Financial POA

If you are an agent under a financial POA, it is your responsibility to carry out whatever investment and spending measures the principal would normally undertake. Unless limitations have been placed in the power of attorney document itself, you can perform such tasks as the following:

• opening bank accounts on behalf of the principal,
• withdrawing funds from their bank accounts,
• trading their stock,
• buying and selling annuities on the principal's behalf,
• paying bills,
• hiring someone to represent the principal in court,
• filing and paying taxes,
• managing the principal's retirement accounts, and
• cashing checks.

In addition, you need to keep detailed records of all your dealings. By law, the financial decisions you make must be in the best interest of the principal. If you are also a beneficiary of the principal's estate, act with care to avoid having anyone misinterpret your intent.

Medical POA

Emergencies can happen at any age. With a medical power of attorney, you would have to step in and make health care and medical decisions for the principal. This role requires that you make choices that align with what you believe the principal would have wanted.

This could mean deciding whether to start or stop a particular medical intervention. Or, it could entail choosing doctors or specialists, or continuing – or stopping – life support.

If someone asks you to serve as their agent under a medical POA, you should engage in an in-depth conversation with them. Raise questions about their wishes and intentions in the face of the unthinkable. Such a discussion may not be particularly pleasant for either of you. But it could potentially help you avoid at least some of the uncertainty or overwhelm in an unexpected emergency.

For instance, what does the principal value most, life-prolonging measures or quality of life? Would they agree to having a ventilator or feeding tube? Have they included a do-not-resuscitate order in their estate plan? Under what kinds of circumstances would they prefer to decline certain treatments if they nearing the end of their life?

In some states, attorneys refer to this role by other names, such as health care power of attorney or health care proxy.

Can You Adequately Fulfill the Role of a Power of Attorney?

An agent under a power of attorney isn’t personally liable for the principal’s bills. However, it is still a huge responsibility that takes time and effort. Before agreeing to be an agent under a POA, consider whether you can devote the time and energy to the job.

Reflect on whether you can emotionally handle making all necessary decisions. For example, as an agent under a medical POA, you should be capable of remaining calm in stressful situations. You need to be comfortable advocating on the principal's behalf with health care providers amid difficult choices. If serving in this role, you may find it beneficial to live near the principal as well.

Take any existing family issues into consideration, too. For example, constant disagreements between the principal's siblings could make serving challenging.

As an agent under a financial POA, you would ideally be savvy with numbers, have strong organizational skills and a sense of integrity, and feel comfortable managing a budget.

If you don't want to serve as an agent under a power of attorney, have an honest discussion with the principal. You can simply tell them that you do not consider yourself the best person to act in this role.

What if the principal has already appointed you, and you decide you want to resign? The power of attorney document may specify the steps necessary. If it does not, the best option is write a letter tendering your resignation. Be sure to send it via certified mail to the person who executed the POA (and any co- or successor agents).

When the Principal Can't Communicate

The person who executed the POA may already be too sick or seriously injured, making direct communication impossible. This can make things somewhat 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, the principal may need a guardian. An interested party – another family member or friend – could petition the court for guardianship. (Learn more about the ins and outs of guardianship in this article.)

Or, if no one is available to take on the job, the principal may end up becoming a ward of the state.

Work With an Estate Planning Attorney

If someone has asked you to serve as an agent under a power of attorney, you may want to refuse or resign. Consult with a qualified estate planning attorney to determine the best way to do that in your state. Search for an estate planning attorney near you today.

For additional reading on the topic of POAs, check out the following articles:

• Who Can Override a Power of Attorney (POA)?
• Q&A: If I Execute a Power of Attorney, Do I Still Have Control Over My Own Accounts?
• A Useless Power of Attorney: Avoid Free Legal Documents
• What Is the Difference Between a Living Will and a Do-Not-Resuscitate (DNR) Order?
• How Do I Resolve a Conflict Between a Financial Power of Attorney and a Medical Power of Attorney?