Estate Planning: “More isn’t always better” – Individual vs. Joint Surrogate Decision-Making

This entry applies especially to “agent” selections for Powers of Attorney (POA) and for Health Care Directives (HCD). But, the same discussion may also be of interest to those thinking about selecting a Personal Representative for their Will.

When you create any of these documents, you will need to decide WHO will be granted decision-maker powers (for POA, financial powers; for HCD, health care decisions; and for Wills, how to handle your estate upon your death). Attorneys will often advise their clients to select at least one “back-up,” if not two. This is common sense and meant to provide security in case your first choice isn’t available.  Another complexity that can arise while you are making your choices is whether you should assign multiple decision-makers as a team or just one at a time in a particular sequence.

The benefits of the “team:”

No one is left out of the important and potentially life-changing decisions, and no one person has the pressure of making the decision(s) alone. Some people worry about offending their friends and family members, and they assign multiple parties to avoid this issue.  This may be a wonderful idea for the family that has a long history of successful team efforts and a track-record of reaching consensus on big decisions.  But, I have found that most families have trouble cooperating under extreme pressure – the kinds of decisions the team might be asked to make may be highly emotional and very difficult. For example, if you ask that the team decide if you should be taken off life-support, will ALL members of the team be able to handle it?  If not, what will the consequences be?  And, what damage to relationships might this cause?

The benefits of the individual in sequence:

Benefits include efficiency of decision-making and clarity of authority. Some decisions can’t wait for consensus to emerge – this can create deadlock and promote discord. The individual decision-maker can consult with anyone they choose, but, in the end, they know that the decision is theirs. Decisions, when necessary, can be made quickly and confidently by the person most able to handle the decision. Some people have only one person they feel comfortable calling on for all responsibilities. Others handle the complex family dynamics by dividing the responsibilities up into several individual tasks (one individual to handle POA and financial decisions, one to handle HCD and health care decisions, and one to handle Personal Representative roles after your death) – matching individuals with their particular strengths.  Still others choose to line up numerous individuals in birth order as successor agents. These are just a few options.

In the end, it’s important to understand that “more is not necessarily better.”  Each person needs to think about their family and friends (whoever they are asking to perform these agent tasks) and ponder the manner in which it is best to ask them to perform these tasks.   An attorney who specializes in this area of law can assist you in understanding your choices so that you can make these decisions confidently.

ALL READERS:   This blog is not, nor shall it be deemed to be, legal advice or counsel. This blog does not create an attorney-client relationship with any reader.  It is designed to encourage thoughtful consideration of important legal issues with the expectation that readers will seek professional advice from a licensed attorney.