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Acting As Someone's Agent

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By: Montana Legal Services Association (MLSA)

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Learn about the situations where you might decide to make someone else your agent for financial matters or communicating with medical providers.
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What is an Agent?

The word "Agent" generally means a person acting for someone else.  It can mean a person acting on behalf of another person, a company, or a governmental agency.  In this article, the word agent refers to a person acting for an elderly and/or incapacitated person.  This article will give information to people who might need an agent to conduct their daily financial affairs or to communicate with health care providers.  An agent should be a trusted person, not necessarily a family member. 

Do I Need an Agent?

1. Consider the circumstances of your life, including what you do on a daily, monthly, and yearly basis to stay housed, fed, and physically well.

Consider a scenario where you are not able to fulfill your responsibilities of taking care of yourself. Who would you ask to help you?  Who would you ask to speak your wishes?  If you don't have a spouse, who is the usual choice for married persons, who would you choose? 

2. Consider whether the person is willing to be your agent.

Where do they live?  How quickly can the person act on your behalf, considering technology and/or travel time? 

3. Determine what type of acts your chosen agent might perform.

If some of the acts are to assist you with daily tasks that have no legal consequences, you do not need to have a written document stating the person is your agent.  For example, if you have someone who helps by bringing you groceries, you do not need to make them your agent. 

4. Do you need someone to communicate your wishes as to medical care?

This usually involves medical procedures that you do not want.  There are good reasons to put in writing who will discuss your condition and what procedures you do not want, especially when you are unable to communicate as you normally do. 

If you need someone to communicate with your medical providers, you should consider signing a Health Care Power of Attorney (HCPOA) or a Living Will.  A HCPOA is for longer periods of time, for example if you suffer a cancer diagnosis.  A Living Will is a statement about a more short-term situation where life-saving measures are temporary, for example if you were to get in a car accident.  You might sign both - after you read all information and understand what you are signing.  

You can (and should) communicate your wishes to your primary medical provider, using what is called a Medical Directive signed by your primary doctor. These directives are not legal documents, but can help with the hard discussions about what kind of medical treatment you may or may not want. For example, you may not want an artificial feeding tube, but you may want treatment to reduce pain and to be more comfortable.   

5. Think about whether or not you have someone you can trust to help with your finances.

If you can identify someone you trust with your money and that person is willing to assist in this way, you might consider a Financial Power of Attorney (Fin POA).  It lets you name someone you know to be your agent to take care of your finances. 

Do not name someone as agent in this document that you have known for less than five years or that you do not trust in all ways, as the document will allow a person other than yourself to access your money.  

Learn more by reading our article on Life Planning Documents. 

Can I Still Make Decisions If I Have Signed a Power of Attorney Document?

Yes. When you appoint someone as your agent, you do not sign over or give away any of your decision-making ability. By law, an agent acting according to a power of attorney document cannot overrule your decisions. An agent also cannot knowingly go against your wishes. Only a judge has the power to take away a person's ability to make decisions, usually by a guardianship or conservatorship, which is determined in a court case.  

What are the Risks of Naming an Agent?

If you sign a document naming an agent, there is the possibility that the named agent will not act according to your wishes.  That is, if you designate someone to act as your agent regarding medical care, the agent could disregard your wishes as to treatment.  If you designate someone to act as your agent regarding your finances and the agent accesses your financial accounts, the agent might disregard their duties and take your money for their use and not yours. 

If you do not like or trust what your agent is doing, you should revoke the power of attorney document you signed previously.  Revoke the prior document in writing, even if you do not have a new agent. Give a copy of that revocation immediately to everyone that holds your prior power of attorney document, including family members, banks, attorneys, doctors, caregivers, and the agent. 

Learn more about How to Revoke Your Power of Attorney.

What Do I Do If Someone Asks Me to Sign a Power of Attorney Document?

Do not do sign the document immediately.  Give yourself time to read it carefully - more than once - and time to understand the document.  If you do not want to designate the agent in the document, do not sign the document. 

Any legal document granting power to someone as your agent must be drafted with language clearly stating your wishes. It should also use words that prevent the person gaining the power from using the document in a way that is contrary to your wishes or your best interests. Do not let anyone control your choice of agent or the type of power you wish to grant. Always carefully read any document before you sign it and ask all questions you have if the language in the document does not clearly state your wishes. 

Important: If you have been asked to sign a document that designates an agent, it is best to ask for legal advice, because this article does not cover all circumstances that may apply to you. Here are some places you can go:  

  • Your private attorney 

  • MLSA Elder Justice Project for persons 60 and over; eligibility not guaranteed 

  • State Bar Lawyer Referral for finding a private attorney 

Learn More

Visit the Legal Service Developer website to review forms for Declaration of Living Will, Financial Power of Attorney, and Health Care Power of Attorney. 

Funding Statement

This article is supported by the Administration for Community Living (ACL), U.S. Department of Health and Human Services (HHS) as part of a financial assistance award by ACL/HHS. The contents are those of the author(s) and do not necessarily represent the official views of, nor an endorsement, by ACL/HHS, or the U.S. Government. 

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Related Resources
Related Resources

How to Revoke a Power of Attorney Document

By: Montana Legal Services Association (MLSA)

Use this form to revoke (end or stop) the power you gave to someone acting as your
agent. Instructions are included in the document.

Life Planning Documents

By: Montana Legal Services Association (MLSA)

Learn about how to plan for your needs in case you become unable to take care of yourself or your property, including the need for legal documents.