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Published: Saturday, 1/15/2011

Executor can also serve as health care power-of-attorney

Dear Dale: Should the person who is named executor of a will also be named as the health care power-of-attorney? It seems like a conflict of interest.

My quick answer is that I don't see the conflict. The underlying presumption of your question seems to be that a person given both duties might be tempted to use the health care power-of-attorney to hasten someone's demise in order to reap whatever benefits that might exist as executor of the will.

A health care power-of-attorney takes effect when a person becomes incapacitated and can't make health care decisions on his or her own. The health care power-of-attorney may require the person vested with that power to authorize certain medical procedures or withhold treatment. It extends beyond life-and-death situations. Obviously, when you give someone that kind of authority, it stands to reason that you trust him or her.

Likewise, we presumably pick people we trust to be the executors of our estates. The executor must follow the decedent's wishes as spelled out in a will subject to the dictates of state law. The executor's duties include things such as collecting debts owed to the estate, paying debts, and seeing that the beneficiaries receive what they're entitled to under the will.

Most people give health care power-of-attorney to a spouse or a child. And, not surprisingly, most people will name a spouse or a child as executor of their estate. Most of us have a fairly small universe of people we'd trust with those important duties. In many cases, the person who comes to mind for each job is one and the same. Or, the decision may include other factors such as logistics or a sense of obligation to name a certain person to a position in order to spare feelings.

Whatever the driving forces, one would think that the underpinning of the decision is trust. And, if you think someone whom you've given a health care power-of-attorney might be tempted to wield that power to bump you off for their own gain, you've got bigger problems on your hands.

Let's look at it from a practical standpoint, though. Whomever you vest with health care power-of-attorney likely will be a family member who would handle your will. So, under the premise of your question, a person in that situation would always have a conflict, whether or not he or she was named as executor of an estate. As an aside, an executor won't always be a beneficiary under a will.

Therefore, the only way to avoid the conflict you perceive is to only give a health care power-of-attorney to a person who won't be a named beneficiary in a will or trust. I just don't think that's very realistic.

But, if that doesn't ease your concern, you might want to consider the impact of a living will. A living will differs from a health care power-of-attorney. The living will determines what medical care you should receive if you're permanently unconscious or terminally ill -- and you are not able to communicate.

The living will is supposed to control those decisions even if the person with health care power-of-attorney wants to go in a different direction.

So, if a living will exists, a person with health care power-of-attorney may not have authority to make certain life-and-death decisions, and if that person also is named executor, any conflict you may perceive would cease to exist.

Dale Emch practices law at the Dale Emch Law Office, LLC, in Toledo. In his column, he will discuss general legal principles and answer readers' questions. Neither Mr. Emch nor The Blade present or intend his column to be taken as legal advice. Readers seeking legal advice should consult with an attorney. Readers may send their questions to 615 Adams St. Toledo, OH 43604 or dale@daleemch.com. His Web site is www.daleemch.com.



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