Date: February 4, 2022

Acting as an agent under a power of attorney and/or advance directive for healthcare decision making is a big responsibility and it isn’t something everyone can take on. It is possible to resign or refuse the position(s) when necessary.

When referring to a power of attorney in this article, the focus is on financial powers of attorney. Medical powers of attorney, also known as “living wills” or “advance directives”, are separate documents and as such, should be distinguished from financial powers of attorney.

As the agent under a power of attorney, you act in place of the “principal” – the person executing the power of attorney — for financial purposes when and if that person ever becomes incapacitated or is otherwise unable to manage his or her own affairs. This can be a big job, depending on the person you are representing.

As agent under power of attorney, you are responsible for taking whatever investment and spending measures the principal would take himself or herself. Unless limitations have been placed in the power of attorney document itself, you can open bank accounts, withdraw funds from bank accounts, trade stock, pay bills, and cash checks. In addition, you need to keep good records of all your dealings. 

While an agent under a power of attorney isn’t personally liable for the principal’s bills, it is still a huge responsibility that takes time and effort. Before agreeing to be an agent under a power of attorney, consider whether you are able to devote the time and energy to the job and whether you can emotionally handle making the decisions. In addition, think about if there are family issues, such as constant disagreements among siblings, that would make serving difficult. 

Within the context of a living will or advance directive for healthcare decision making, the agent must step in and make medical decisions for the principal that he or she believes the principal would have wanted. For example, you may have to make decisions about whether to start or stop a particular treatment, which doctors or specialists to choose, or whether to continue or stop life support. 

If you do not want to serve as an agent under a power of attorney or advance directive for healthcare decision making, the best thing to do is to have an honest discussion with the person executing the document(s). You can simply tell them that you are not the best person to act in those roles. If you have already been appointed and you decide you want to resign, the document may specify the steps necessary. If these steps aren’t spelled out, the best thing to do is write a letter tendering your resignation and send it via certified mail to the principal and any co- or successor agents.

If the principal is incapacitated already, it is a little more complicated. Ideally, the document has named successor agents. In that case, you can refuse the job and the successor agent can take over. If there are no successor agents, a guardian may need to be appointed for the principal. An interested party — another family member or friend — could petition the court for guardianship.

If you are named as agent under a power of attorney or advance directive and want to refuse or resign, our Elder Law team at Mandelbaum Barrett is available to discuss your options. 

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