The people

What is a Successor Agent?

Insight about successor agents under a Power of Attorney

Updated 19 December 2022 · 9 min read

This page explains

Why Does The Term “Successor Agent” Mean?

The term “successor agent” is used to identify a replacement for an agent who is ineligible for appointment.

Terminology

In the Six (6) Greater States other than California, the term “successor agent” is used to identify a replacement for an agent who is ineligible for appointment.

California prefers the term ‘alternate agent’ (§4014), the term “successor agent” being preferred in this Wiki, for consistency.

See: New York §5-1501, Illinois §2-10.3, Pennsylvania §5602(b) Florida §709.2102 Texas §751.023).

A Successor Agent Replaces An Original Agent Who Is Ineligible

‘Succession rules’ governing when a successor agent takes office are inconsistent across the Six (6) Greater States, for example:-

• in California, legislation is silent as to whether a successor agent might replace an agent before every agent is ineligible (as applies in Texas in respect of a durable Power of Attorney) or things work as they do in New York

• in Texas a successor agent is “not considered an agent” and “may not act until all predecessor agents, including co-agents, to the successor agent have resigned, died, or become incapacitated, are not qualified to serve, or have declined to serve” (see §751.023)

• in New York, “a principal may designate one or more successor agents to serve, if any initial or predecessor agent resigns, dies, becomes incapacitated, is not qualified to serve or declines to serve” (see §5-1508)

Successor Agent Replacing A Successor Agent

As to whether a successor agent might replace another successor agent who is ineligible in the Six (6) Greater States in respect of a Power of Attorney for a person¹:-

• in California, the succession rules set out below permit a principal to designate a successor agent to replace an agent and if we look at the wording of §4203, we find the term “attorney-in-fact” is used to identify who may have a successor agent designated for them and in turn, the term “attorney-in-fact” is defined to include “a person granted authority to act for the principal” (§4010) which appears to include a successor agent, suggesting it is possible
• in Texas, a principal may designate in a durable Power of Attorney one or more successor agents to act if an agent resigns, dies, or becomes incapacitated, is not qualified to serve, or declines to serve (§751.023) and the term “agent” is recognized to include a successor agent in §751.002
• in New York, §5-1508 provides that “a principal may designate one or more successor agents to serve, if any initial or predecessor agent resigns, dies, becomes incapacitated, is not qualified to serve or declines to serve”, which seems to suggest a successor agent cannot replace a successor agent
• in Florida, pursuant to §709.2111 “a principal may designate one or more successor agents to act if an agent resigns, dies, becomes incapacitated, is not qualified to serve, or declines to serve” and §709.2102 defines an agent as “a person granted authority to act for a principal under a power of attorney, whether denominated an agent, attorney in fact, or otherwise” which suggests a successor agent may replace a successor agent
• in Illinois §2-10.5 says “a principal may provide for the appointment of one or more successor agents who shall serve in the order named in the Power Of Attorney, unless the principal expressly directs to the contrary” which might leaves things unclear in terms of whether it possible, except §2-4 makes clear a principal may “specify in the agency the event or time when the agency will begin and terminate, the mode of revocation or amendment and the rights, powers, duties, limitations, immunities and other terms applicable to the agent and to all persons dealing with the agent, and the provisions of the agency will control notwithstanding this Act” which on its face, leaves the door wide open in terms of a principal permitting a successor agent to replace a successor agent, accepting this does not resolve the position where a Power of Attorney is silent upon this issue in which event, §2-10.5 is not an easy source of an answer, given the language is relatively different, speaking only on terms of a service in the prescribed order without mention of whom they serve
• in Pennsylvania §5602 says “A principal may provide for the appointment of one or more successor agents who shall serve in the order named in the power of attorney, unless the principal expressly directs to the contrary” being the same as the words in §2-10.5 in Illinois, although in Pennsylvania there is no provision similat to §2-4 in Illinois, making it more difficult to resolve the position and arguably, the most difficult given for the reasons explained above, it seems there is at least a positive basis to assert what appears to be the position in the other five (5) of the Six (6) Greater States

Designation Or Appointment Of Successor Agent By Protector

Whilst a successor agent may be nominated may name in all of the Six (6) Greater States, in four (4) of the Six (6) Greater States a person may also be nominated as a successor agent.

In three states, a protector identified by office, function or title may be authorized to “designate” successor agents (see California (§4203), Illinois (§2-10.3) and Texas only in respect of a durable Power of Attorney §751.023).

In Pennsylvania §5602 speaks of an agent or successor agent being authorized to “appoint” their own successor agent.

Successor Agents Replacing Successor Agents

In Pennsylvania, §5602 also says a principal may provide for the “the delegation to an original or successor agent of the power to appoint his successor or successors”, making it clear that there is no restriction upon a successor agent being succeeded by another successor agent.

This might be questionable in other states where for example, legislation speaks specifically of a successor agent replacing an agent.

Succession Rules In The Six (6) Greater States

Summarised below is a rough account of how things work in each of the Six (6) Greater States with respect to Powers of Attorney for persons, focusing upon succession rules.

California

In California, §4203 provides:-

“a principal may designate one or more successor attorneys-in-fact to act if the authority of a predecessor attorney-in-fact terminates”

Texas

In Texas in respect of a durable Powers of Attorney, a successor agent may act if an agent resigns, dies, or becomes incapacitated, is not qualified to serve, or declines to serve (see §751.023).

Unless a Power of Attorney provides otherwise, a successor is “not considered an agent” and “may not act until all predecessor agents, including co-agents, to the successor agent have resigned, died, or become incapacitated, are not qualified to serve, or have declined to serve” (see §751.023).

This means for example, unless the Power of Attorney says otherwise, a successor agent is not appointed until they replace someone.

This may or may not be how the principal would prefer things to work.

Some principals might prefer that a successor agent actually be appointed despite having no role to play in terms of performing core tasks until the office of an agent is vacant.

No doubt not all principals may prefer things work this way, however some might.

Particular care is warranted in Texas dealing with this issue.

New York

• In New York:-
  • where two agents are appointed to act together, the Power of Attorney “takes effect” only when all agents have accepted appointment, which unlike matters contained in §5-1508 is not said to be subject to any contrary terms the principal might prefer to include in a Power of Attorney - this kind of ‘restriction’ is not seen in any of the Six (6) Greater States
  • albeit it also said to be “unless the Power of Attorney provides otherwise”, in §5-1508 it is said that if a vacancy occurs because of the death, resignation or incapacity of a co-agent, the remaining agent or agents may act for the principal" and “a principal may designate one or more successor agents to serve, if any initial or predecessor agent resigns, dies, becomes incapacitated, is not qualified to serve or declines to serve” which at least one reasonable reading, is quite different from how things work in Texas for example in respect of a durable Power of Attorney, at least unless the Power of Attorney says otherwise. It seems in New York whilst “a principal may provide for specific succession rules” (§5-1508) absent any express provision in a Power of Attorney, a successor agent seems to be entitled to replace an agent well before all agents have become ineligible, unlike Texas where absent any express provision in a durable Power of Attorney, the position is opposite

Florida

In Florida, pursuant to §709.2111, a “principal may designate two or more persons to act as co-agents” and “a principal may designate one or more successor agents to act if an agent resigns, dies, becomes incapacitated, is not qualified to serve, or declines to serve” and “a successor agent may not act until the predecessor agents have resigned, have died, have become incapacitated, are no longer qualified to serve, or have declined to serve”, which seems to align Florida to the New York approach as opposed to the Texas approach as referred to in the previous bullet paragraph, albeit equally said in Florida to work this way “unless the Power of Attorney otherwise provides”

Illinois

In Illinois, §2-10.5 says “a principal may provide for the appointment of one or more successor agents who shall serve in the order named in the Power Of Attorney, unless the principal expressly directs to the contrary” which leaves things slightly unclear in terms of whether these words refer to the ‘Texas’ approach or ‘Florida/New York’ approach explained above - that is, whether a successor agent is entitled to replace an agent well before all agents have become ineligible, which is one possible interpretation of these words. wxasPerhaps in Illinois the effect of these words includes preventing other arrangements being adopted given §2-10.5 says nothing to the effect “unless the Power of Attorney otherwise provides”, although views may differ because for example, §2-4 states “The principal may specify in the agency the event or time when the agency will begin and terminate, the mode of revocation or amendment and the rights, powers, duties, limitations, immunities and other terms applicable to the agent and to all persons dealing with the agent, and the provisions of the agency will control notwithstanding this Act”.

Pennsylvania

In Pennsylvania, : §5602 says “A principal may provide for the appointment of one or more successor agents who shall serve in the order named in the power of attorney, unless the principal expressly directs to the contrary” being words that similar to §2-10.5 in Illinois, seem to leave things unclear as to whether a successor agent is entitled to replace an agent well before all agents have become ineligible although it seems possible in Pennsylvania for a principal to specify how they want things to work in any event.

§5602 also says a principal may provide for the “the delegation to an original or successor agent of the power to appoint his successor or successors”, making it clear that there is no restriction upon a successor agent being succeeded by another successor agent, which might be questionable in other states.