Q. 2 years ago, after my wife of 50 years died, I executed a Power of Attorney (POA) naming my 2 daughters Co-Agents. I did not want either daughter to feel that I favored one over the other so, with the attorney’s guidance, I instructed on the POA that the girls had to act together – and, not or. Long story short, my 2 daughters who did not get along so well before my wife died are now fighting constantly and I am in the middle. I guess my wife was able to mediate between our daughters; now, with my wife gone, the situation is stressful and unpleasant. I just want to live in peace and stop the fighting between my children. Truthfully, I want to leave my estate documents as they are and have my daughters get along. I am not sure I want to make a new POA naming only 1 of my 2 daughters as agent.
A. If you do not want to change your estate planning documents, you should not do so. You are the only one who gets to decide who your agent(s) is. If you do not want to make any changes, then keep the POA as it is. No one – not either of your daughters, nor an attorney - should put pressure on you to make any changes. As long as you are mentally competent to make decisions and take care of yourself, you will be fine. The problem is that no one knows when he or she may need someone to act as agent under a POA and that is why you presumably executed the POA after your wife’s passing. If the time comes that you are no longer mentally capable, it will be too late to make any changes to your estate plans.
Relationships with adult children are often fraught with reverse caretaker roles where the child thinks he or she knows best for an aging parent, even when the parent can take care of himself as in your case. I see this in my practice frequently enough. I am an attorney, not a social worker. If you think that family therapy including you and your 2 daughters would resolve the situation, that may be a good option for your family. Otherwise, the ball is firmly and solely in your court. Your choices are to leave your POA as it is or execute a new document. Please do not cross out or otherwise change anything in your document, as that leads to the presumption that you intended to revoke the appointment of all agents, which would not be a good outcome here.
Frankly, even executing a new POA may not fix the problem and may even exacerbate it. How will the daughter removed as agent feel toward her sister and you? You seem to be in a no-win situation. In the end, you need to give this matter more thought and do what is best for You. Good luck.
W. Zehava Schechter, Esq. specializes in estate planning, administration and litigation; real estate law; and contracts and business law. Her law practice is located on Long Island. Please send your comments to SchechterLaw@gmail.com. Her podcast, the LI Law Podcast, may be downloaded on itunes, Google Play, Spotify, Stitcher, or wherever you get your podcasts. The podcast website is: https://lilawpodcast.podbean.com.
No column is a substitute for competent legal advice. Please consult with the attorney of your choice concerning specific legal questions you may have.