You Can Just Say No: Declining to Act as an Agent Under a Power of Attorney

Acting as an agent under a power of attorney is a big responsibility and it isn’t something everyone can take on. It is possible to resign or refuse the position.

There are two main types of powers of attorney – financial and medical. As the agent under a power of attorney, you act in place of the “principal” – the person executing the power of attorney — for financial or medical purposes when and if that person ever becomes incapacitated. This can be a big job, depending on the person you are representing.

With a financial power of attorney, you are responsible for taking investment and spending measures on behalf of the principal. Ideally, the power of attorney will provide you with sufficient authority to act as the principal would have wanted to in any particular situation. In Pennsylvania, the power of attorney instrument must spell out such powers. Typical financial powers you might exercise include opening bank accounts, withdrawing funds from bank accounts, trading stock, paying bills, and cashing checks. But you can’t make gifts, change beneficiary designations, create most kinds of trusts, or perform other so called “hot powers” unless specified in the power of attorney. In addition, you need to keep good records of all your dealings.

With a medical power of attorney, you can access medical records, communicate with physicians, and make health care arrangements generally. Moreover, if the principal is unable to make or communicate health care decisions, you can step in and authorize or refuse medical treatment. So, for example, you may have to make decisions about whether to start or stop a particular treatment, which doctors or specialists to choose, or whether to continue or stop life support.

While an agent under a power of attorney isn’t personally liable for the principal’s bills, it is still a huge responsibility that takes time and effort. Before agreeing to be an agent under a power of attorney, consider whether you are able to devote the time and energy to the job and whether you can emotionally handle making the decisions. In addition, think about if there are family issues, such as constant disagreements among siblings, that would make serving difficult.

If you do not want to serve as an agent under a power of attorney, the best thing to do is have an honest discussion with the person executing the power of attorney. You can simply tell them that you are not the best person to act in this role. If you have already been appointed and you decide you want to resign, the power of attorney document may specify the steps necessary. If these steps aren’t spelled out, the best thing to do is write a letter tendering your resignation, and send it via certified mail to the person who executed the power of attorney and any co- or successor agents.

If the person who executed the power of attorney is incapacitated already, it is a little more complicated. Ideally, the power of attorney document has named successor agents. In that case, you can refuse the job and the successor agent can take over. If there are no successor agents, a guardian for the principal may need to be appointed.  An interested party — another family member or friend — could petition the court for guardianship.

If you are named as agent under a power of attorney and want to refuse or resign, contact Vasiliadis Pappas Associates. And if the principal can’t find anyone else willing or able to take on the job, let him or her know that we can help set up a Revocable Trust as an alternative to power of attorney.