Practical Advice for Fiduciaries Serving as an Agent Under a Durable Power of Attorney or Health Care Surrogate
Being appointed as an agent under a Durable Power of Attorney (DPOA) or as a Health Care Surrogate is a significant responsibility. Whether you are a family member, close friend, or professional fiduciary, your role is vital in ensuring that the person you are helping—your principal—receives the care, support, and attention they need. It’s important to understand your legal duties, as well as practical strategies for navigating these responsibilities effectively.
Here are some helpful tips for fiduciaries serving as agents under a DPOA or as Health Care Surrogate:
- Know Your Legal Responsibilities
As an agent under a Durable Power of Attorney, you are granted the authority to act on behalf of the principal (the person who created the power of attorney) for different financial and property transactions. The scope of your authority may be broad or narrow (depending on the terms of the DPOA), and grants you significant power to access and control the principal’s assets. No matter how broad your authority, you should always exercise your powers in the best interest of the principal. If you are serving as a Health Care Surrogate, your responsibility is focused on making medical decisions when the principal is unable to do so themselves. These decisions should be based on the principal’s wishes, values, and best interests.
It’s essential to familiarize yourself with the exact powers given to you. The DPOA or health care documents should clearly outline what decisions you can make—whether it’s financial, medical, or related to personal matters. Understanding these documents fully will help you avoid mistakes and keep you in line with your loved one’s wishes.
- Keep Clear Communication with the Principal
If your principal is still able to communicate, maintain open and ongoing dialogue about their wishes. This is especially important if the principal has specific preferences that are not documented or have evolved over time. If possible, make sure these preferences are noted in writing. A regular check-in will not only strengthen your relationship but will also ensure that you’re making decisions that truly reflect their desires.
For example, if you’re the Health Care Surrogate and the principal has expressed a specific preference for certain types of treatments or procedures, make sure those wishes are clear. This can prevent potential conflicts or confusion later on.
- Understand the Limits of Your Authority
While the DPOA grants you a great deal of authority, there are limitations. For example, you cannot use the power to change the principal’s will or make gifts of their property (unless specifically authorized in the document). If you’re uncertain whether a particular action falls within your authority, consult with an estate planning attorney. Similarly, as a Health Care Surrogate, there may be specific medical procedures or treatments that are outside your scope of decision-making. Always defer to the principal’s advance directives or consult healthcare professionals when in doubt.
- Keep Detailed Records
Documenting everything is crucial when serving as an agent under a DPOA or Health Care Surrogate. This can help protect you legally and ensure transparency. If you make financial decisions, keep copies of bank statements, receipts, and any correspondence related to the transactions. Similarly, for medical decisions, maintain a record of appointments, conversations with doctors, and the decisions you make on behalf of the principal.
- Respect the Principal’s Independence and Dignity
While you are acting on behalf of the principal, it’s essential to respect their independence as much as possible. Empower them to make decisions when they are able to do so and only step in when necessary. Review the terms of the DPOA or health care advance directive to know when your authority begins. In Florida, an agent’s powers are effective immediately under the DPOA, whereas a health care surrogate’s powers may only become effective when the principal is not able to communicate his or her medical decisions. Preserving the principal’s dignity is crucial in maintaining trust and respect in your fiduciary role. This is especially important if the principal is experiencing cognitive decline or a major illness.
- Consult Professionals When Needed
Estate planning law can be complicated, and the decisions you make as an agent under a DPOA or Health Care Surrogate can have long-lasting impacts. If you’re unsure about your responsibilities or need guidance on a specific issue, don’t hesitate to consult with an attorney or financial advisor. Legal and financial professionals can offer you advice to make sure you’re staying within the bounds of the law and fulfilling your role appropriately.
- Prepare for Potential Conflicts
Serving as an agent can sometimes involve navigating challenging situations, particularly when other family members or loved ones disagree with the decisions you’re making. It’s important to approach these situations with empathy and patience. Communicate openly, share your understanding of the principal’s wishes, and try to resolve conflicts amicably. If a dispute escalates, you may need to seek mediation or legal assistance to find a resolution.
- Be Aware of State-Specific Laws
Estate planning laws vary from state to state, and certain powers under a DPOA or health care surrogate might differ depending on where you live. It’s a good idea to familiarize yourself with the laws in your jurisdiction and check for any updates that might affect your duties or the legal standing of the documents. Consulting an estate planning attorney in your state can help ensure you’re fully compliant with local laws.
- Review the Documents Regularly
It’s important to periodically review the DPOA and health care surrogate documents, particularly if the principal’s health or financial situation changes. These documents should reflect their current wishes and should be updated if necessary. For example, if new medical conditions arise, you may need to revisit advance directives to ensure they align with the principal’s updated desires.
- Know When to Step Back
Sometimes, despite your best efforts, it may become clear that you are no longer able to fulfill your role as an agent. This might be due to personal health issues, overwhelming responsibilities, or conflicts of interest. In such cases, it’s important to recognize when to step back and allow someone else to take on the responsibility. If you need assistance, consult the principal’s family or other trusted individuals, or seek guidance from a professional to ensure a smooth transition and that you have satisfied all requirements under the document and applicable state law for resigning as a fiduciary.
Being an agent under a Durable Power of Attorney or Health Care Surrogate is a deeply rewarding but challenging responsibility. By understanding your legal duties, respecting the principal’s wishes, and maintaining clear communication, you can provide the best care possible while protecting both your interests and those of your loved one.
If you have any questions or need help reviewing a Durable Power of Attorney or Health Care Surrogate document, the experienced estate planning attorneys at The Diamond Law Firm are here to support you and advise you in special role as a fiduciary.
