The following scenario is more common than we’d like to admit. Mom or Dad appoints one child as their agent under a power of attorney. They never intended to leave the other child in the dark. But, distrust abounds when Mom or Dad are incapacitated and the children disagree about how to best care for the parents’ finances.
In many cases that we see, the un-appointed child has specific fears and concerns about the other child’s trustworthiness. At the same time, the honest agent probably hates having their shoulder looked over. How does the agent act appropriately, and what rights, if any, does the other child have?
We often encounter clients fitting both of these descriptions. The law gives significant deference to the fact that Mom or Dad made their choice, right or wrong, to appoint one child as an agent. The agent owes very high duties and responsibilities to Mom or Dad, but not to any other children who might naturally be interested in Mom or Dad’s personal or financial welfare.
More often than not, the un-appointed child can minimize trust issues by keeping in close contact with Mom or Dad. They can help quell their own fears by maintaining as active a role in Mom or Dad’s affairs as Mom or Dad is willing to permit. Texas law might not permit the un-appointed children from demanding some sort of accounting of the agent’s actions, but those children can certainly bend Mom or Dad’s ear from time to time. By doing so, Mom, Dad and even the un-appointed child can better understand the situation and see those storm clouds far on the horizon before they get much closer.
Remember that powers of attorney are revocable estate planning documents. Depending on the circumstances, Mom or Dad might be convinced to alter their plan such that all of their children are included in agent responsibilities. Many times, litigation over estate planning, or the initiation of guardianship proceedings, can be avoided simply by employing some good old-fashioned communication.