How to Choose Your Attorney for Property or Attorney for Personal Care

As previously discussed, more than one person can be named in a POA document. The people given decision-making authority in the POA document are called the attorneys for property or the attorneys for personal care. In the POA context, attorney does not usually mean lawyer. It simply means the the person with legal authority.

Some factors to consider when choosing your attorney are:

1. Who will make the best financial decisions?

See article: Who to Appoint as Financial POA (POA for Property)

2. Who will make the personal or medical decisions?

See article: Who to Appoint as POA for Personal Care (Healthcare POA)

3. If you appoint more than one attorney, how will authority be exercised – in priority, jointly, or jointly and severally?

See article: Appointing More Than One POA

4. If you appoint more than one attorney, how will disputes be determined or resolved?

See article: Preventing & Resolving POA Disputes

5. Willingness – Who wants the role? (See explanation below)

6. Proximity – Who lives nearest to you and will be available when the need for a decision arises? (See explanation below)

7. Ability – Who will have the ability to carry out their responsibilities, particularly considering their time, age, or ability? (See explanation below)

Willingness of the Attorney:

If the person named as an attorney does not want to act, they are free to refuse to the role. No one appointed in a POA document has to accept the role. A POA is not a mutually-binding contract; it is simply a unilateral (one-sided) expression of the wishes of the person making the document.

This is one reason it is important for a person to name more than one attorney. If a person who loses capacity has no attorney willing to act, either someone must make an application to Court for an Order appointing them the legal guardian, or the Office of the Public Guardian and Trustee may have to step in.

The reverse is also true. Just because a family member is willing or eager to act as an attorney, doesn’t mean they are the appropriate person to act. Sometimes, the “bossy pants” wants the role simply to lord it over their siblings, or step-siblings, or in-laws. This never works out well.

Proximity of the Attorney:

The named attorney(s) for property and personal care should live reasonably close by, so that if they need to attend the bank or hospital or deal with other institutions, they can do so without having to drive a long distance or worse, charter a flight.

This is particularly important if a person will require ongoing assistance from an attorney over months or years. Imagine the many tasks the attorney must perform – like going through the grantor’s mail, paying bills, shopping or at least arranging for purchases, arranging for the person’s regular medical, dental, specialist, and social appointments, advocating for the person during any longer term stays in a medical facility, and the like. While some things can be done online like automating bill payments, realistically, a lot of things require a personal attendance.

Time, Age, Health of the Attorney:

If a person names an attorney who is busy raising six kids and running their own businesses, the attorney simply may not have the time to act. This is particularly true if the attorney must act over months or years. The duties required of an attorney can easily take as much time as a part-time job and often well more than a full-time job, depending on how many decisions they must make.