Left to consider an infinite universe of possibilities, some people struggle to identify the family members, friends, institutions, or advisors they should select as their agents or backup agents. These are some key factors to consider in selecting the people who may need to make decisions for you and those you are responsible for.
The ideal agent should have four essential qualities:
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They should connect well with you and your family. Which relatives, advisors, and friends are a strong communicator with a proven track record of seeking you out (and your spouse and kids if needed) to understand what is happening and to make sure that your needs will be met in moments of crisis?
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They should be a go-getter. Serving in any of these roles may require them to solicit important information from doctors and institutions, advocate zealously for you if necessary, and be diligent enough to stay on top of tasks like filling out paperwork.
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They should be reasonably patient. Many aspects of a legal process (especially in estate and trust administration) can involve a fair amount of waiting. If they have a particularly short fuse when dealing with others, putting them in as an agent may end up creating more issues than it solves.
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Most importantly, they must be honest and mature enough to put the interests of other people above their own. An agent is a fiduciary, or someone who carries a legal responsibility for doing the right thing by others. If you are considering selecting someone for whom this might be a struggle, simply don’t.
To rephrase these questions in another, less intimidating way, if something bad happened to you, who do you know who would show up on your front porch to drop off a meal from your favorite restaurant (without eating most of the waffle fries)? Or if they couldn’t do that because they live far away or do not have transportation, would have something delivered to you and check in with supportive texts, calls, and information until the crisis is over? That’s a person you may want to consider putting in your documents as an agent. They don’t need to be a brain surgeon or financial wiz to be a good agent as long as they are bright enough to recognize their weaknesses and humble enough to ask others for help when needed.
Choosing a guardian for your children can be an especially difficult struggle for young parents but essentially boils down to the similarly simple principles. Who do you feel would best be able to connect with your child to help encourage them and brighten their day when they are struggling? Be feisty enough to advocate for their educational needs even if they encounter resistance, but gentle enough to respond with kindness to the painful ways a child may manifest their grief? At the end of the day, do you trust that they would put your child’s health, safety, and happiness above their own lifestyle and preferences?
As difficult as it may be to make the choice, the reality is that you are in a much better position to evaluate these factors than any judge trying to make the decision based on paperwork (and whatever they can do to size them up over Zoom during a pandemic). Creating estate planning documents is a simple, cost effective way to empower the people you trust most to take action.
Finally, keep in mind that aside from sophisticated tax planning trusts (which often have special features designed to achieve a similar purpose) any documents you create can usually be easily modified or revoked as long as you are able to demonstrate mental capacity. Don’t let the desire to make the perfect choice stand in the way of your ability to make a great one!
