Consecutive or Co-Agents: Naming Multiple Persons to Act in a Florida Durable Power of Attorney

An essential document in any Florida estate plan should include a Durable Power of Attorney ("DPOA"). This document allows a person to designate another person or persons to act on their behalf in connection with personal, business and financial matters. A DPOA is critical in the event a person has a health crisis or becomes severely injured or incapacitated. Elderly persons particularly benefit by having a DPOA because their designated person, i.e. their agent, can act for them on matters that they can no longer do themselves. Without a DPOA, often a court-administered guardianship becomes the only alternative.

So in setting up a DPOA, can you name more than one person to act for you as agent? The answer is not only "yes" but that it is advisable to have more than one agent named. Having multiple persons named as agent allows for "back-up" if something happens to one agent. Redundancy is never a bad thing in estate planning. Naming multiple agents can be done either in consecutive order, such as naming a primary and then a secondary, or it can be done where "co-agents" are named. Here's some examples of the two alternatives:

Example 1: Consecutive Agents. "I, John Smith, desiring to create a durable power of attorney pursuant to Chapter 709, Fla. Stat., hereby appoint my father, Thomas Smith, who is of sound mind and is 18 years of age or older, as my true and lawful attorney-in-fact, (hereinafter referred to as 'agent') for me and in my name, to do any and all acts which I could do if I were personally present and acting for myself. If Thomas Smith is unable or unwilling to act as agent, then my brother, Mark Smith, who is of sound mind and is 18 years of age or older, shall act as agent with all rights and responsibilities given to the original agent."

Example 2: Co-Agents. . "I, John Smith, desiring to create a durable power of attorney pursuant to Chapter 709, Fla. Stat., hereby appoint my father, Thomas Smith, and my brother, Mark Smith, both of whom are of sound mind and are 18 years of age or older, as my true and lawful co-attorneys-in-fact, (hereinafter referred to as 'co-agents') for me and in my name, to do any and all acts which I could do if I were personally present and acting for myself. If either Thomas Smith or Mark Smith are unable or unwilling to act as co-agent, then such of Thomas Smith or Mark Smith as are able or willing shall act as sole agent."

So which is better, naming consecutive agents or co-agents? As with many things in the law, it depends. Each person's situation varies and sometimes the decision depends on who you will be naming as agents. As a result, you should discuss this with an experienced estate planning lawyer who can help you weigh the competing considerations and make the decision that best fits your situation.

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