Q: Can someone name 2 persons (daughters) as "co-attorneys in fact" in their Durable Power of Attorney document?
My 92 year old father is updating his estate planning documents after the passing of my mother. He wants to appoint both myself and my sister as co-attorneys in fact since we are both helping him with his financial and medical affairs. He doesn't want to name one person as primary and the other as secondary -- because he feels that secondary can only act when primary is unable to act.
A:
There is no law that prohibits co-attorneys in fact. However, conventional wisdom is to avoid it because having co-attorneys in fact can become unwieldy, especially if they get sideways with each other. If they must act together and they are unable to work together then the effective result is you have no attorneys in fact.
The usual solution is to specify in the power of attorney that they each have independent authority, but even then you have the problem that if a third party, such as a bank, gets even the whiff of disagreement between the co-attorneys in fact, the third party will require the signatures of both, and you are back to effectively having no co-attorneys in fact.
I do have clients who insist on appointing co-attorneys in fact, and I always try to talk them out of it unless they are adamant that their children really do work well together.
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