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What Happens If Two People Listed As Power Of Attorney Disagree?

Updated on
February 15, 2021
Article written by
Attorney Kevin O'Flaherty

In this article, we will discuss what happens if two people listed as co-agents for power of attorney do not agree on a decision for their principal. We will answer the following questions:


  • What are the different types of power of attorney?
  • What is a competent principal?
  • How is a disagreement between co-agents resolved if the principal is incapacitated?
  • What are some ways to avoid conflict between power of attorney co-agents?


Appointing a power of attorney can be a difficult decision. You’re asking someone to take on the responsibility of making a medical or financial decision if you’re not available or you’re incapacitated. Naturally, it may seem like a good idea to spread that authority to more than one person. You decide to name your two daughters as co-agents for power of attorney; they can share the burden. But what happens if they can’t resolve a disagreement? It may be necessary to involve the court, and suddenly, you’re in the exact situation you were trying to avoid.


What Are The Different Types Of Power Of Attorney?


There is a handful of different power of attorney options available to fit your legal needs, but for the most part, power of attorney falls into one of six categories:


  • Health Care Power of Attorney - Your appointed health care power of attorney handles actions and decisions related to your health care, such as whether or not you have surgery, get moved to a nursing home, are placed on life support, etc.
  • Financial Power of Attorney - Your appointed financial power of attorney, handles decisions and actions such as paying bills, taking money out of your checking account to cover certain expenses, opening a checking account, managing investment accounts, etc.
  • Nondurable Power of Attorney - Nondurable power of attorney terminates when you become incapacitated.
  • Durable Power of Attorney - Durable power of attorney remains in place before and after you become incapacitated. Durable PoA is the most common type of power of attorney for estate planning purposes. It allows the person you name as PoA to make decisions without court intervention immediately, should you become incapacitated.
  • Limited Power of Attorney - This is typically combined with nondurable power of attorney and used in business transactions, such as closing on a property, or for any other instance when you can’t be present or don’t want to be present for a legal matter.
  • General Power of Attorney - This type of PoA gives the appointed individual near complete authority to make all decisions in your stead. It is most often employed with durable power of attorney in estate planning so that a medical or financial decision is made quickly.


What Is A Competent Principal?


The principal is the individual who appoints a power of attorney. Another way to think of the principal is as the person a power of attorney is making the decisions for. A competent principal is still coherent and mentally able to make his or her own decisions. If power of attorney co-agents disagree on a financial decision and the principal is mentally competent and not physically incapacitated, then the principal’s decision supersedes the representatives. The principal also has the authority to revoke an agent’s authority. 


How Is A Disagreement Between Co-Agents Resolved If The Principal Is Incapacitated?


If two people are named as co-agents on a durable power of attorney and they are faced with a financial or health care decision that they can’t agree on, then the co-agents can petition the court to decide. In most case, this will be the probate court. The court will attempt to discern the principal’s wishes through any estate planning documents available and will consider evidence and testimony from the co-agents. The court can also modify the power of attorney, revoke and agent’s power of attorney or appoint a new power of attorney to resolve the conflict. 


What Are Some Ways To Avoid Conflict Between Power Of Attorney Co-Agents?


The simplest option is to not give two people power of attorney. Or, if you must appoint two people, name one as the primary representative and the other as the secondary representative in case the primary becomes incapacitated. If you’re still concerned about the decisions of the primary representative, then you probably need to take another look at your choices. Some other options to avoid conflicts between agents include:


  • Having one person act as financial PoA and the other as health care PoA;
  • Having one person act as both financial PoA and health care PoA;
  • Assigning specific duties to each agent;
  • Assigning a third party to be the deciding factor should the co-agents disagree; or
  • Resolve the issue through mediation instead of the courtroom.



What Happens If Two People Listed As Power Of Attorney Disagree?
Author

Attorney Kevin O'Flaherty

Kevin O’Flaherty is a graduate of the University of Iowa and Chicago-Kent College of Law. He has experience in litigation, estate planning, bankruptcy, real estate, and comprehensive business representation.

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