selecting your agents

When preparing your estate plan, you will have to make at least three significant decisions: who to select as the executor of your will, your agent under a power of attorney, and your agent via a health care proxy. Depending upon the complexity of your estate plan, you may also need to select trustee(s), guardian(s) of minor children, agent(s) to control the disposition of your remains, etc. As if selecting people for these various roles is not difficult enough, you should also select successor agents, should the first person be unable to act and/or fulfill their designated role.

Each role a person plays in your estate plan has separate and distinct responsibilities. Your executor is the person that will tie up your estate matters at the time of your death; your agent under power of attorney will likely have the powers to control your finances during your life; and your health care agent will have the powers to make medical decisions for you should you be unable to make those decisions for yourself.

It is important that you give serious thought and consideration before selecting any one or more people to effectuate your plans. You should consider the strengths and weaknesses of your family members, friends, and trusted professionals. Indeed, it is not uncommon for a parent with multiple children to split up these roles among said children. Perhaps child A is a certified accountant that would be more qualified to handle your finances, while child B is a doctor or nurse and would better serve at making necessary medical decisions as your health care agent.

Additionally, you may consider your various agents’ proximity to you. Does child A live five minutes away, while child B lives across the country? Would it be difficult for your agent to assist you when needed because of the distance they must travel? While proximity is not the end all, especially with today’s technology and advanced travel, it is definitely something that should be taken into consideration.

You should also consider the age of your selected agents. Are you 80+ years old and selecting your older sibling to be the executor of your will? This may not be ideal, and you may want to consider selecting someone that has a greater probability of surviving you and having full mental capacity to handle your probate estate upon your demise. Perhaps when you originally drafted your estate plans your children were minors, but are now adults and are able to act on your behalf.

You should also think about your family dynamics and how everyone gets along – currently as well as historically. Where you have two or more children that continually butt heads and bicker with each other, it may be in everyone’s interest for you to select an independent third-party to act as your agent in one or more of the various roles.

The people you select to effectuate your estate plans are vital to the plan’s success. Don’t feel like you can only choose one person to fulfill each role. Rather, choose the people you feel would be best for each individual role.

Michael Giannasca

Michael Giannasca

Michael Giannasca and Brian Miller are attorneys with the law firm of Giannasca & Shook, PLLC.The Elder Law & Estate Planning Group of the firm handles all aspects of Elder Law including wills & probate, trusts & estates, Medicaid planning, guardianships, estate administration and litigation, and asset protection.Mr. Giannasca and Mr. Miller are members of Elder Counsel, the National Academy of Elder Law Attorneys, the Elder Law and Special Needs Section and Trusts and Estates Law Section of the New York State Bar Association and the Trusts & Estates Section and the Elder Law Committees of the Westchester County Bar Association; 1 Barker Avenue, Suite 325, White Plains, NY 10601; 914-872-6000.
Michael Giannasca

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