Should I or Should I Not be the Agent?

Disclaimer: These are real legal issues that the firm deals with but the stories surrounding them are fictitious in nature. Unless otherwise indicated, all the names, characters, businesses, places, events and incidents in this blog post are either the product of the author's imagination or used in a fictitious manner. Any resemblance to actual persons, living or dead, or actual events is purely coincidental.




Recently, a client was contemplating litigation against another family member. Let’s call her Sally.


The story begins when Sally was contacted to act as agent under her brother’s power of attorney for healthcare. Apparently, he was beginning to lose capacity. Sally declined because she did not know if she had the strength and energy to take care of her brother’s needs. Another family member stepped in and accepted the office as agent. Now Sally began to regret her decision.

When Sally was recently visiting her brother at his home, she was concerned that her brother lacked the capacity to be living on his own. Furthermore, she felt the living arrangements were sub-par.


Sally spoke to the existing agent who seemed to be defensive. Sally came to our office to explore her options. We discussed Sally’s different legal options with her. As Sally reviewed her options, she stated her greatest regret was not accepting the office of agent in the first place.


Her main issue was that she didn’t understand the responsibilities involved in being the healthcare power of attorney. Basically, Sally initially thought she had to be in the house taking care of her brother doing hands-on service. That was not the case.

A healthcare agent acts in a supervisory role. As an agent, she did not have to be a hands-on caregiver. She could and should check in her brother to make sure he is safe, but she did not need to be the only caregiver.


I needed to hire an experienced professional to guide her through the process.

  1. Sally would begin by having her brother’s situation assessed. Is it safe for him to be home? Can the home be changed to make it safe? Would the brother be safer and better supported in an assisted living facility?

  2. Sally would also have to consider the financial resources available to take care of her brother. How much did her brother have? Was he eligible for government assistance?

  3. Based on the first two steps, Sally could hire or get the right team to help her implement the best plan for her brother’s care.

The main issue was that Sally would have been in the driver’s seat, deciding how her brother’s care should be administered. She now finds herself without any say, because she did not appreciate that she could hire an elder law attorney to help her build the right team around her and her brother.


If you find yourself in a similar position as Sally, call a qualified elder law attorney to help you navigate the best decision for you.




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