In New York, choosing an attorney-in-fact (now referred to as an “agent” under New York law) is an important decision because your agent acts on your behalf when it comes to your personal finances and legal matters if something happens to you or if you authorize the agent to act on your behalf even if you are perfectly well. The agent is the person who is named in your power of attorney documents. You will give this person significant power over your affairs, so selecting someone trustworthy and capable is critical.
If you do not appoint an agent using a power of attorney, your family may need to go to court to gain control over your affairs, which can become time-consuming and costly. Consider the following additional points while thinking through your choice for an attorney-in-fact or agent.
During your estate planning, before you settle on a specific candidate, understand that some people cannot serve as your agent for legal reasons. For example, the individual must not have any criminal convictions or be under 18.
The individual must also understand their role and its duties and obligations. You should also ask the individual if they want to assume the responsibilities before making your final designation as the job can be stressful. Your chosen person can be a family member or friend, or you can hire a trust officer, banker or accountant.
Trustworthy and competent
Because of the sensitive personal and financial information that you must share with your agent, choose someone you know to be trustworthy. The individual must have your best interests in mind and be able to act on your directives even if they disagree with your wishes. The individual must be honest and reliable, someone you can trust to follow through on their duties.
Your agent should also understand financial and legal matters and be able to make decisions regarding these topics on your behalf. If you have a complex legal or financial situation, consider choosing an agent with experience in finance or law.
Available and compatible
If you suddenly become incapacitated or worse, you need an agent who can be available at a moment’s notice and lives nearby. They might need to act quickly, so choose someone you know will be responsive. You may also need a selected backup person in case your original chosen person cannot perform as required.
Choosing the best agent is a critical decision, and you can make an informed choice when you know the key traits to consider.