Episode 73: Why saying yes to serving as agent under a POA can backfire
Episode 73
Host: Jill Mastroianni
Why saying yes to serving as agent under a POA can backfire
Agreeing to serve as an executor, trustee, or agent under a power of attorney often feels like the right thing to do but it’s also one of the most overlooked risks in estate planning. In this episode, Jill flips the perspective and walks through what you need to evaluate before you say yes to a fiduciary role in someone else’s estate plan. From compensation and liability to knowing when to step in and how to step out, this episode highlights the gap between estate planning documents and real-life execution. Because a well-drafted estate plan only works if the people named in it are set up to succeed.
What You’ll Learn in This Episode
Why saying “yes” to serving in an estate plan can create unexpected stress, conflict, and liability
The five key questions to ask before agreeing to serve as executor, trustee, or agent under a power of attorney
How estate planning documents often fail to prepare fiduciaries for real-world responsibilities
Why estate planning isn’t just about documents; it’s about implementation
Key Takeaways for Estate Planning
1. Serving in an Estate Plan Is a Job—Not a Favor. Acting as executor, trustee, or power of attorney requires time, decision-making, and accountability. Estate planning documents should clearly address compensation. If compensation isn’t defined, it can lead to tension, burnout, or refusal to serve.
2. Understand When Your Authority Begins. Powers of attorney are either immediate or springing. “Incapacity” must be clearly defined within the power of attorney document. Without clarity, fiduciaries are left navigating gray areas with banks, doctors, and family members.
3. Know How to Step Down. Estate planning should include a clear resignation process for fiduciaries. Questions to ask include: Who needs to be notified? Is a successor already named? Are you required to continue until replaced?
4. Protect Yourself from Liability. Serving in an estate plan carries real legal risk. Non-professional fiduciaries often lack insurance protection. Estate planning documents should include indemnification language to protect you.
5. You Need Information to Do the Job. Most people step into estate roles with little to no asset visibility. A strong estate plan includes asset inventories, clear instructions and ongoing updates.
Resources & Links
Watch this episode on YouTube: https://youtu.be/QGPDhEcvktg
Limitation of Liability Language: I recognize that the Executor of my Estate may be an individual who is not a professional fiduciary. In order to induce such individual to serve in such capacity, I hereby direct that the assets of the Estate be used to indemnify and hold any individual non-professional fiduciary serving as Executor harmless with respect to any and all acts, except for fraud and bad faith of such individual in connection with (i) the administration of my Estate, and (ii) the investment of assets with respect to my Estate.
Mollie Lacher’s services: https://sunnycareservices.com/our-services/
The Death Readiness Playbook: www.deathreadiness.com/playbook
The Death Readiness Playbook Co-Branding: www.deathreadiness.com/playbookbranding
Connect with Jill:
Website: DeathReadiness.com
Email: jill@deathreadiness.com
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Agreeing to serve as someone’s executor or agent under a power of attorney sounds like the right thing to do until you realize what it actually involves. Today, I break down five questions you need to ask before you say yes.
From compensation to liability to what happens if you need to get out, you’ll need clear answers.
Because this isn’t just a favor; it’s a job with real responsibility and real consequences. And sometimes, the right answer is: “no.”
Welcome to The Death Readiness Podcast. This is not your dad’s estate planning podcast. I’m Jill Mastroianni — estate planning attorney, death readiness guide, and your translator for wills, trusts, probate, and the conversations most families avoid. If you’ve been wondering things like, ‘Can a trust protect what I leave to my children?’ ‘What happens if I give someone power of attorney over me?’ and ‘How can I help my parents while respecting their independence?’ You’re in the right place.
This past week, I was in Nashville for my daughter’s spring break, but it was also a work trip. I felt like I was being pulled in a lot of directions… trying to give her a spring break to remember while also showing up for professional meetings.
We were staying with a friend who offered to let us use his electric scooters. My daughter was very excited about this. I was… less so.
One afternoon, after a work meeting, we headed out. It was my first time on an electric scooter, and I was gripping the brake so hard that my shoulder really hurt.
I thought I was doing a pretty good job pretending to have fun, trailing behind my teenage daughter. Then she doubled back and said, “Do you want to go into this parking lot and practice for a bit?”
And I said, “No, I think I’m okay.” Then I paused and asked, “Wait… am I too slow?”
And she said, very honestly, “Yes. You’re way too slow.”
So we pulled into the parking lot. And I did loops. And she coached me through how to ride without clutching the brake for dear life.
Trying to do everything and make it look easy isn’t actually easy.
Sometimes it takes your kid calling you out to realize it’s okay to slow down, admit you don’t quite know what you’re doing, and get a little instruction before you keep going.
And that’s exactly what we’re talking about today.
Because when life is moving fast, it’s really easy to say “yes” to something, especially when it involves someone you care about, without slowing down to fully understand what you’ve just agreed to.
Sometimes, you need to pull into the parking lot, take a breath, and get oriented.
Before we get started today, I wanted to let you know that I’m picking up the second edition of The Death Readiness Playbook this Thursday. If you pre-ordered it, your copy will ship on Monday, April 13th. And if you’ve been thinking about it, there’s still time. Get your order in by the end of this week and I’ll make sure yours goes out on Monday, too. You can check it out at deathreadiness.com/playbook.
While I was in Nashville, I caught up with Mollie Lacher, a good friend and a professional I trust. We started talking about her expanding her services to include serving as an agent under a durable power of attorney for finances.
And she asked me a really good question that is today’s Tuesday Triage question:
What should she be looking for in a power of attorney document if she’s the one being asked to serve?
I don’t usually look at these documents from that angle. My client is typically the person creating the document, the principal, not the person being asked to serve as agent.
So today, we’re flipping the perspective.
We’re going to talk about powers of attorney—and really, fiduciary roles more broadly—from the point of view of the person being asked to serve. Whether that’s as an agent under a power of attorney, an executor, or a trustee.
The reality is that you are just as likely to be asked to step into one of these roles as you are to appoint someone else.
I’m in both positions myself. I’ve named my husband as my agent. And he’s named me as his.
So today, I’m going to walk you through five things you should look for before you say yes to serving.
#1 – How are you going to get paid?
Serving as an executor, trustee, or agent under a power of attorney is a job.
Yes, you might want to do it for your spouse for free. Maybe even for your parents. But beyond that, you need to think carefully about what you’re agreeing to.
Because this isn’t a symbolic role. It’s real work.
In my own practice, it’s not uncommon for people to expect legal help for free because they’re going through a loss. And I do have a lot of compassion for that. But this is still work that needs to be done, and done correctly, and it requires real expertise.
We don’t expect therapists to work for free because someone is grieving. We don’t expect doctors or nurses to work for free because someone is in pain. And the same applies here.
If you’re being asked to serve, you are being asked to take on responsibility, liability, time, and emotional energy. Each of those things has value.
So be clear about compensation, especially if you’re not a beneficiary.
That being said, there are some states like California that permit an Executor to be compensated with a certain percentage of the value of the probate estate. Regardless, I still think it’s important to address compensation in the document so that there isn’t any ambiguity.
I recently reviewed estate planning documents for a client—I’ll call her Sandy—who had been named as trustee. She wasn’t a beneficiary. And the first thing I noticed was that the trust said nothing about how she would be paid.
And based on everything else—the family dynamics, the assets, the lack of organization, the fact that the estate was in California and she lived in Michigan—it was clear this was going to be a significant lift.
After we talked it through, Sandy made the decision not to serve. Because the person asking her to take on that role wasn’t willing to take the steps to make the job doable, including compensating her for the time she’d have to take away from her actual, paying job.
One key question is: is this role being set up in a way that makes it possible for you to succeed?
Compensation is part of that.
You can structure it a lot of different ways—a flat fee, an hourly rate, or a percentage of the value of the assets administered. And if you do include a set amount, it’s worth thinking about an adjustment for inflation so it still makes sense years down the road.
#2 – How will you know when it’s time to serve?
This question is specific to powers of attorney.
Because before you say yes, you need to understand when your authority actually begins.
Is the power of attorney immediate? Or is it springing?
And just as important—are you going to be told it’s time to step in… or are you just supposed to figure it out?
As I’ve mentioned before in a few episodes, there are two types of financial powers of attorney: immediate and springing.
An immediate power of attorney takes effect right away, the moment it’s signed. I have one naming my husband as my agent, which means he could step in and act for me today if needed.
A springing power of attorney is different. It doesn’t take effect until the person who created it is considered incapacitated.
And that’s where things can get tricky.
What does “incapacitated” actually mean?
It should be clearly defined in the document. Maybe it’s an inability to manage financial affairs. Maybe it requires one doctor’s statement. Maybe two statements.
But if that definition isn’t clear, or if the process to confirm it isn’t spelled out, you’re left in a really uncomfortable position.
If you’re very close to the person, like a spouse, you’ll probably know when it’s time to step in.
But what if it’s your Uncle Bob?
How are you supposed to know?
If Uncle Bob is in a coma after a car accident, that’s obvious.
But what if he’s in the early stages of Alzheimer’s? He’s still functioning, but he’s slipping.
At what point do you step in? Who makes that call? And how is that decision documented so a bank will actually accept it?
Those answers should be in the document.
And if they’re not, you’re stepping into uncertainty, potential conflict, and a lot of guesswork.
So before you agree to serve, make sure you understand exactly when your authority begins and how you’ll know it’s time.
#3 – How can you resign?
This is the part no one thinks about when they say yes. But you should.
Before you agree to step into this role, you need to know how you can get out of it if you’re in over your head.
What does resignation actually look like? Who do you need to notify? Are you allowed to step down immediately, or are you stuck until someone else takes over?
If the person who appointed you still has capacity, resignation is usually straightforward. You notify them—the principal—and that’s the end of it.
But if they’re incapacitated, it gets more complicated.
Now you have to think about: who steps into your place, and who needs to know?
Is there a successor agent named in the document? If so, you’ll likely need to notify them—and you should make sure you have their contact information, not just a name in the document.
Is there a court-appointed guardian or conservator? They may need to be notified as well.
And if there’s no clear guidance, you may need to look to the same group of people who would receive notice in a guardianship proceeding, like the person’s immediate family.
This is where things can get messy quickly.
If there’s no clear path for resignation, you can find yourself stuck in a role you no longer want, or can’t realistically manage.
#4 – What happens if you get sued?
When you agree to serve in a fiduciary role, you’re taking on responsibility. And with responsibility comes potential liability.
Are you a professional? Or are you just doing someone a favor?
If you’re a professional fiduciary, you likely have insurance. This is part of your job. You’re being paid, and you’re set up to take on that risk.
But if you’re not, if you’re a family member or a friend stepping in to help, you probably don’t have that same protection.
And yet, the expectations, and the potential for conflict, can be just as high.
That’s why, if you’re serving in a non-professional capacity, I strongly recommend that the document includes language that protects you.
Without it, you are personally exposed if something goes wrong, or if someone thinks something went wrong.
I’m going to give you an example of language you can ask to have included. This version is written for an executor, but it can be adapted for a trustee or for an agent under a power of attorney.
And I’ll include this in the show notes, so don’t feel like you need to write it down.
Here’s the language:
I recognize that the Executor of my Estate may be an individual who is not a professional fiduciary. In order to induce such individual to serve in such capacity, I hereby direct that the assets of the Estate be used to indemnify and hold any individual non-professional fiduciary serving as Executor harmless with respect to any and all acts, except for fraud and bad faith of such individual in connection with (i) the administration of my Estate, and (ii) the investment of assets with respect to my Estate.
Now, that’s legal language but here’s what it really means:
If you’re stepping in as a non-professional, the estate, not you personally, should bear the risk, unless you’ve acted in bad faith or committed fraud.
Agreeing to serve shouldn’t mean putting your own personal assets on the line.
#5 – What do you do once you’re appointed?
This is the part where reality sets in.
Because once you’re in the role, the first question is very simple:
What does this person actually own?
For an estate or a power of attorney—what accounts, what assets, what debts?
For a trust—what is actually titled in the name of the trust?
Most people are stepping into these roles with almost no information.
Now, compare that to someone who does this professionally.
Mollie Lacher, who I mentioned earlier, offers to serve as Executor of estates in Tennessee but she doesn’t just say yes and figure it out later.
First, she has an intake session with the client and their attorney to understand the plan, not just what’s written in the will, but the intent behind it.
Then she has a separate session to go through the assets in detail.
And she requires annual check-ins to make sure everything stays current.
That’s the standard for someone who does this for a living.
So if you’re being asked to serve for free, and none of that is happening… you are likely starting from zero.
And that’s where things get hard.
Mollie and I worked together on an estate where a very experienced and well-respected Nashville attorney had been named executor.
It was his first time actually serving as executor.
And he was shocked by how much work it was—and how complicated it was.
And then the beneficiaries didn’t want to pay his hourly rate.
So every hour he spent doing the job, he was losing money.
He walked away from that experience with one very clear takeaway: he would never agree to serve as executor again.
And that’s what I want you to think about.
In the moment, saying yes can feel like the right thing to do. It feels generous and it feels supportive.
But if you’re not given the information, the organization, and the support you need, you’re being set up to struggle.
So treat this like a professional would.
Get the information, get organized, and get clarity.
And if needed, get help, whether that’s someone like Mollie Lacher or another professional who specializes in estate organization or after loss administrative support.
And if the person asking you to serve isn’t willing to do that? That’s okay. They can choose someone else.
I recently had a hard conversation with a close friend. I said, “I know you want me to serve. But you haven’t given me the tools to do it. The choice is yours—you can either give me what I need to do this well, or you can choose someone else.”
And that’s the mindset I want you to have.
Because saying no, or saying “not like this,” is sometimes the most responsible decision you can make.
So, before you say yes, pull into the parking lot.
Agreeing to serve without understanding what you’re stepping into is how good intentions turn into resentment, conflict, and burnout.
You are allowed to ask questions and expect clarity. And, you are absolutely allowed to say no.
Death Readiness isn’t just about having the right documents. It’s about making sure the people named to serve in those documents are actually set up to succeed.
At the top of the episode, I mentioned thatthe second edition of The Death Readiness Playbook is now available. And, we’re now offering a co-branded version of The Death Readiness Playbook for estate planning attorneys, financial advisors, and other related professionals.
It’s a way to give your clients something tangible, something that actually helps them bridge the gap between documents and real life. Check it out at deathreadiness.com/playbookbranding.
Thanks for listening today.
This is Death Readiness, real, messy and yours to own. I’m Jill Mastroianni and I’m here to help you sort through it, especially when you don’t know where to start.
Hi, I'm April, Jill's daughter. Thanks for listening to The Death Readiness Podcast. While my mom is an attorney, she’s not your attorney. The Death Readiness Podcast is for educational and entertainment purposes only. It does not provide legal advice. For legal guidance tailored to your unique situation, consult with a licensed attorney in your state. To learn more about the services my mom offers, visit DeathReadiness.com.
