Momma elephant approaching a conflict

I have the following exchange often with people:

Me (lawyer): Ok Mrs. Smith, who would you like to serve as your Executor, Power of Attorney and Health Care Proxy?

Mrs. Smith (client): Oh, I don't know. I really cannot decide. If I appoint my daughter my son will get mad at me and if I appoint my son, my daughter will never talk to me again. What a mess that will be. Those two have always been competitive. I guess I'll just appoint my son and daughter together. Is that OK?

Me (lawyer): Well legally it is OK but are you sure they can work together and not fight? It is usually best to appoint only one person.

Mrs. Smith (client): Well, I don't know about that, but what do I care - - I won't be around anyway (ha ha) 😊

As a lawyer doing this work for over 30 years, I have come to see this exchange from three different perspectives: 1) legal, 2) practical and 3) “Boy, are you sure you really want to do that.”

Legal Aspect

Sure, legally speaking you can appoint anyone you want (or as many people as you want) to be your Executor, Power of Attorney or Health Care Proxy. There is nothing written in the law that prevents you from doing that, although it is usually best to name only one person as a way of avoiding conflict. So legally you are good.

Practical Aspect

While legally you are free to do what you want, practically speaking you should name people to represent your interests who are available to do so and who have the willingness and inclination to take the time to perform this function in your best interest. Having a certain level of expertise can be helpful, but you do not need to be a financial wizard to be someone's POA to manage a few bank and investment accounts nor do you need to be a doctor or nurse to be a person's health care proxy. More important than any of that is that the person cares enough about you to understand your wishes and desires and is loyal to acting in your best interest consistent with your wishes and desires. Your representative can always seek professional help to assist them with specific challenges. For instance, if there was a complex tax issue to be resolved, the POA can simply hire a CPA or tax lawyer to advise them of what to do. Not a big deal.

“Boy, are you sure you really want to do that” Aspect

I say this somewhat facetiously, but it is true. Mrs. Smith is about to appoint her two children to act for her one day when she can no longer do so for all the wrong reasons! Mrs. Smith already knows her children do not get along and not only that, they compete for her attention and recognition. Mrs. Smith may have been a lovely and caring mother, but she raised two “Alpha” personality children who are not inclined to ever work together, especially when it comes to making significant decisions concerning their mothers' life, including where she will live the rest of her life, how her money should be spent and managed, and end of life medical treatment. It is just not going to happen. Appointing both children is a recipe for disaster and unless Mrs. Smith dies peacefully in her sleep one night, the likelihood that conflict will arise costing the estate tens (if not hundreds) of thousands of dollars in legal fees if the conflict boils over into the court system is almost guaranteed.

Ultimately Mrs. Smith is going to do what she feels she has to do to keep the peace (and usually not listen to the lawyer), but it may or may not be the best decision long term – no one really knows since we cannot predict the future. However, if you are inclined to appoint two or more people to represent your interests when you are no longer able to do so yourself, it would be wise to include in your documents a “Conflict Resolution Clause” that establishes a process for resolving conflict short of engaging the court system. This might include requiring the parties to participate in mediation for several hours, or engaging in a “collaborative law” process whereby you engage lawyers for the sole purpose of negotiations and not litigation, or private arbitration, all of which are intended to arrive at an amicable resolution. These strategies will help bring the parties together in making critical decisions about you and your care (win/win solutions), as opposed to going to court that is designed to divide parties (win/lose outcomes).