What it says

Allocating Tasks

Allocation of tasks to agents under a Power of Attorney

Updated 3 January 2023 · 6 min read

• Tasks may be allocated differently to different agents
• Government forms handle this task poorly
• The terms joint, several and joint & several refer to ways in which decisions may be authorized to be made
• There is a significant problem with government forms
• Examples of how a principal might allocate tasks in many different ways are easy to find
• Arguments against the wide and various allocation of tasks are misplaced
• Mandatory authority where Power Of Attorney is silent
• California - Texas - New York
• Florida - Illinois - Pennsylvania

Tasks May Be Allocated Differently To Different Agents

A principal may appoint any number of agents under a Power of Attorney, other than in Illinois if a government form is used, in which event only one agent may be appointed and multiple successor agents may also be appointed: §2-10.5.

A principal may allocate tasks to their appointed agents, to be performed however the principal sees fit.

Government Forms Handle This Task Poorly

A government form only permits ‘all tasks’ to be assigned ‘one way’, as explained further below.

This is one of the reasons that a government form represents at best, a ‘one-size-fits-all’ approach.

Putting aside the other deficiencies of government forms, there must be at least a fraction of people who want to arrange their affairs differently.

Allocating different tasks to be performed different ways by different agents is an integral part of a Power of Attorney, which cannot be done using a government form.

The Terms Joint, Several and Joint & Several Refer To Ways Decisions May Be Made

A principal might authorize a certain task to be performed in one or more of the following ways:-

• by agreement (often referred to as acting “jointly”)
• independently (often referred to as acting “severally”)
• by majority

Within the Six (6) Greater States, only Illinois has legislation referring to tasks being performed by majority.¹

Meaning of Jointly, Severally or Majority

EXPLAIN MAY BE AS BETWEEN ALL OR LESS THAN ALL AGENTS ETC.

EXPLAIN MAJORITY COULD BE 50% BASIS, OR SPECIFIED BASIS ETC.

There Is A Significant Problem With Government Forms

Government forms in the Six (6) Greater States effectively provide for:

• a series of ‘statutory’ tasks to be chosen
• a number of agents to be chosen
• a box to be ticked, indicating whether agents may perform the chosen ‘statutory’ tasks by agreement, independently or similar.

Government forms do not recognize for example, that often a principal wants:-

• some tasks to be performed by different agents, perhaps some tasks by agreement, others independently and similar.
• certain tasks performed a certain way if the principal lacks capacity (say by certain agents by agreement or majority) and another way if the principal has capacity (say independently by any agent)
• other tasks to be performed some other way

Examples of How A Principal Might Allocate Tasks In Many Different Ways Are Easy To Find

Imagine a principal who appoints three agents, Bill, Bob and Mary.

The principal may authorize various tasks to be performed:-

• by Bill and Bob independently if the principal has capacity and Mary if Bill and Bob are ineligible or unable to be contacted
• by Bill and Bob jointly if the principal lacks capacity, or one of them independently if only one of Bill and Bob is eligible, or Mary if Bill and Bob are ineligible
• by Mary and Bill independently and never by Bob, even if Bob is the only agent who is eligible
• by Mary if the principal lacks capacity

Arguments Against The Wide and Various Allocation of Tasks Are Misplaced

The wide and varied allocation of tasks to be performed different ways by different agent is sometimes criticized by commentators on a number of grounds.

These concerns are far outweighed by the importance of protecting the fundamental right of a principal to define and allocate tasks to different agent, however they see fit.

Below are some further comments, addressing the fallacy of some of the common arguments.

Argument 1

It is sometimes said that where for example, a task is authorized to be performed independently by say two of four agents the inability of the unauthorized agents to perform the task if the authorized agents are ineligible is a weakness.

This is a fallacy if the Power of Attorney simply provides that in the event that the two authorized agents are ineligible, the unauthorized agents may perform the task

This is a good example of a criticism of a government form, a weakness unique to government forms, which is easily overcome using a better Power of Attorney.

There would be many ways to resolve the concern, using a custom-made Power of Attorney.

Solutions include for example, allocating a task to be performed by a majority made up of two or more agents who are eligible, including provisions authorizing a single agents who is eligible to perform the task independently if only one agent is eligible and this is the principal’s preference.

Argument 2

It might be said that allocating tasks to be performed certain ways depending on whether the principal has or lacks capacity is unreasonably complicated:-

• a common criticism of this approach is that it makes the capacity of the principal a ‘live fact’ at all times
• affording freedom to anyone who prefers to structure their affairs any way they see fit should be protected as a fundamental right
• even if only a handful of people prefer to structure their affairs in such a fashion, that right should be protected in every way possible

Any issue is capable of being managed with appropriate wording in a Power of Attorney.

For example, what if a principal was content to define a regime that provided in the absence of medical evidence to the contrary, the principal was to be considered to have capacity for all purposes under the Power of Attorney?

Would that not make such an arrangement more workable?

Mandated Authority - Where A Power Of Attorney Is Silent

In the Six (6) Greater States, legislation governing Powers of Attorney for persons² provides what is to occur where a Power of Attorney is silent as to how multiple agents exercise authority.

California

§4202 states the following which is to be read in conjunction with §4101 which recognizes the right to vary the effect of this provision:

(a) A principal may designate more than one attorney-in-fact in one or more powers of attorney.

(b) Authority granted to two or more attorneys-in-fact is exercisable only by their unanimous action…

Texas

Unless the durable power of attorney otherwise provides, each co-agent may exercise authority independently of the other co-agent: §751.021

New York

Unless the principal provides otherwise in the power of attorney, the co-agents must act jointly: §5-1508

Florida

§709.2111 states:

(6) If a power of attorney requires that two or more persons act together as co-agents, notwithstanding the requirement that they act together, one or more of the agents may delegate to a co-agent the authority to conduct banking transactions as provided in §709.2208(1) , whether the authority to conduct banking transactions is specifically enumerated or incorporated by reference to that section in the power of attorney.

Unless the power of attorney otherwise provides, each co-agent may exercise its authority independently:§709.2111

Illinois

§2-10.5 states:

(b) Unless the power of attorney or this Section otherwise provides, authority granted to 2 or more co-agents is exercisable only by their majority consent.

Pennsylvania

§5602 states:-

A principal may provide for:

(1) The appointment of more than one agent, who shall act jointly, severally or in any other combination that the principal may designate, but if there is no such designation, such agents shall only act jointly.