By: Olivia R. Holcombe-Volke, Associate – firstname.lastname@example.org, 443-393-7696
When appointing agents to act on one’s behalf, whether in a fiduciary or non-fiduciary capacity, there are several decisions that can result in consequences far more complicated than one might anticipate. One of these has to do with designating more than one agent to act at a time.
To clarify: a common preference in designating agents to act on one’s behalf is to name two (or more) agents simultaneously, which then leads to the question of whether these agents must act jointly (but not individually), or, in the alternative, jointly (or individually). In my experience, the motivation for naming more than one agent to act jointly (or, jointly or individually) is two-fold: some are comforted by the idea that more than one person will have to sign off on decisions, or at least will be aware of decisions being made, rendering a built-in system of checks and balances; others are driven by the concern that by only appointing one agent at a time, feelings will be hurt or offense will be taken (agent #2 will feel “why wasn’t I named as agent #1?”).
But what other considerations should be taken into account? As a starting point, if two (or more) agents are named to act jointly (but not individually), this means that both (or all) will have to sign off on every decision – they will have to act jointly. This can be problematic enough when the agents live in close proximity to one another; imagine a scenario where immediate action needs to be taken, and one agent is out of town or otherwise temporarily unavailable. If the agents live in different locations, the complications can be greater – even in these modern, digital times. And, whether two (or more) agents are appointed to act jointly (but not individually) or jointly (or individually), there are situations where simply having more than one agent empowered to act at the same time can lead to healthcare, financial, or other institutions refusing to recognize the authority of the agent(s), due to the institution’s refusal to face even the slightest risk of potential liability (on the basis of improperly allowing action to be taken by an agent, for example).
As with all important financial and healthcare decisions, comprehensive counseling with a professional should play an integral role.