Most people name their children as their agents (or else as successor agents if the client has a spouse). This includes naming a child as a Power of Attorney, Health Care Proxy, Executor or Successor Trustee. Of course, the child sometimes doesn’t know about this, and many attorneys do not discuss the topic in depth with the client. Most children don’t even know where their parent’s legal documents are. This can cause confusion, and can lead to their frantic scrambling at crucial times.
Knowing when to tell your children they are agents is tricky, and often relies on a case-by-case analysis of the family and the children. Some 21 year olds may be ready to know their role before some 40 year olds. That being said, I believe the sooner the better, since you wouldn’t be appointing your children if you didn’t trust them at some level. You may even consider informing them during the estate planning process, when they can interact with your attorney while you are still fresh in his mind.
First, let’s look at a specific document: The Health Care Proxy. If you have named a child as an agent (and let’s say your spouse has already passed away) you should tell them immediately. This is because, unlike financial documents, you can only name ONE Health Care Agent at a time. New York effectively says “You can deal with financial issues later, buy health care decisions are literally a matter of life and death and we don’t want two parties arguing.” In this case it is also important to tell any other children they are NOT agent or further down on the list of agents so that their sibling does not have to deal with any fallout from your decisions.
Powers of Attorney are often more difficult. Many parents don’t want to let their children know they will have access to their parent’s financial information in the future. Still, I believe that an agent who has been named is, in the mind of the parent, responsible enough to both execute his/her duties AND responsible enough to know his/.her future role. One protective measure is that a New York statutory Power of Attorney requires the agent to sign and accept their position; a good attorney will keep a spare copy on file and, in moments of distress, can provide access to an executed POA when the attorney knows the client is in trouble.
Letting a child know he or she is Executor is almost never an issue: You don’t need to tell your children anything about your financial affairs, and you will have died at the point they are appointed. So, again, sooner is better than later.
Lastly, as a practice, it is good to let a child know where legal documents exist, and parents should give their children their attorney’s contact information in case an emergency arises. Only then will the client’s needs and desires for their choice of agent be actualized.
