As an estate planning lawyer, I always recommend that clients have both a Power of Attorney for Healthcare and a Durable Power of Attorney for non-medical matters. In each of those documents, the client is authorizing a person or persons to make decisions and act on their behalf. The Power of Attorney for Healthcare covers decision-making for medical and health issues; the Durable Power of Attorney for covers decision-making and taking action on non-medical matters such as finances, banking, and bill paying. So, can you authorize two or more people to act as co-agents under these instruments and if you do, can one agent act without the other or does action require all agents to act together? The simple answer in Florida is that you may name co-agents and one co-agent may act without the other co-agent.
Section 709.2111(1) Fla. Stat. provides that “A principal may designate two or more persons to act as co-agents. Unless the power of attorney otherwise provides, each co-agent may exercise its authority independently.” It should be noted that if the Power of Attorney states that both must act together, then this statute does not nullify that provision. In other words, in that case, the agents would have to act together. A problem with this type of limiting provision arises when both agents are not available.
In the Power of Attorney for Healthcare and the Durable Power of Attorney which we use at Lins Law Group, P.A., we specifically include a statement that co-agents are authorized to act individually as authorized in Section 709.2111(1). The intent of stating this is to avoid any question about whether one agent may act alone. Consistent with this statement, when we list the co-agents being authorized, we will usually list them as person A “or” person B rather than person A “and” person B.
So consider an example where Susan has a Power of Attorney for Healthcare naming her sons, Tom and Bob, as her co-agnets for decision-making. If Susan gets into an accident or becomes gravely ill and cannot make her own medical decisions, what would happen if either Tom or Bob were unavailable? so long as Susan’s Power of Attorney was properly drafted, either Tom or Bob could make decisions for her. They would not both need to be present.
If you do not have both a Power of Attorney for Healthcare and a Durable Power of Attorney, you should seriously consider having a lawyer prepare them for you. The process is fairly simple and is not expensive but not having them in place can be very costly.