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Question:

My wife and I have absolutely no one but each other to be our agents under our powers of attorney. After one of us passes, is there a place or a kind of firm that could assume that role for us? We are LOST, and don’t know what to do. Our daughter and we are estranged at this time, and may be forever, sadly. We don’t want to talk to our original lawyers, at this point about it. Would much rather find a solution first.

Any advice? I am 80 and my wife is 70.

Response:

Locating a good agent (or “attorney-in–fact”) under a durable power of attorney can be difficult if you don’t have an obvious person to name. Banks and trust companies won’t serve in this role. Some attorneys are willing to take this on, but you’ll have to ask around. They are more likely to take on this responsibility if they already have a relationship with you, for instance, if it’s the attorney or law firm that drafted your estate plan.

To some extent, you can avoid or reduce the need for a durable power of attorney by creating and funding a revocable or “living” trust. Your options for a successor trustee for you and your wife are much broader with banks and trust companies available to step into this role. If you transfer all of your assets into your trust (other than your IRAs and retirement plans which must remain in your individual names), there won’t be much left out there for which a durable power of attorney will be necessary. Unfortunately, “not much” doesn’t mean nothing. It’s still important to have a durable power of attorney if possible to handle IRAs and retirement plans, new assets that you may acquire, and the signing of legal documents and tax returns.

Given that elder “orphanage” or “solo aging” is occurring more often with older folk not having any family member to appoint as a fiduciary, some senior groups, religious organizations and other community associations are beginning to step into the gap with volunteers agreeing to assist one another. They may also have volunteers who would be willing to act as your health care agents. It’s even more difficult to find someone to fill this role because it’s so personal. Lawyers are very reluctant to take this on. You might look around to see if there is any such initiative in your community.

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