What Is Agency by Necessity?
Agency by necessity is a type of legal relationship in which one party can make essential decisions for another party until legally recognized agents like someone with power of attorney or guardianship are put in place. The courts recognize agency by necessity during an emergency or urgent situation under which the beneficiary is unable to provide explicit authorization. Under such circumstances, those granted agency must act for the sole benefit of the beneficiary.
In finance, agency by necessity often takes the form of replacing an individual’s investment or retirement decisions.
- Agency by necessity allows some person or entity to act on behalf of another when the beneficiary is unable to explicitly grant permission to do so.
- These situations often arise from urgent or emergency conditions, but where the beneficiary's needs are placed first.
- In finance and investing, agency by necessity gives a broker or financial advisor certain discretion to act on behalf of a client.
Understanding Agency by Necessity
Emergency situations often lead to agency by necessity in the eyes of the court. For example, if an individual is sick and unable to make a critical investment or retirement decision, agency of necessity would allow an attorney, parent, or spouse to make decisions on behalf of the incapacitated party.
Agency by necessity becomes important in wealth management. For example, many wealth managers are involved in the creation of wills, trusts, and overseeing inheritances of wealth from one generation to the next. If a family member in possession of or who is an agent of the family’s wealth becomes incapacitated in an accident or is ill, another close family member of similar capabilities and understanding of the family finances may take over as an agent of necessity.
At times this can become fraught, however, particularly in cases of high net worth individuals or wealthy families that have to make decisions about wealth distribution for future generations. Family members and additional stakeholders may take issue with decisions that the agent by necessity makes.
Agency by Necessity and Estate Planning
Although many conduct their estate planning before becoming incapacitated, at times these tasks may be given to an agent by necessity. Estate planning entails a variety of critical tasks such as the bequest of assets to heirs and the settlement of estate taxes. Most estate plans require the help of an attorney. Estate planning can also take into account the management of an individual’s properties and financial obligations. If the individual owes debts and is not of sound mind to pay them, an agent by necessity may step in to figure out a plan for repayment.
The assets that could comprise an individual’s estate include houses, cars, stocks, bonds, and other financial assets, paintings and other collectibles, life insurance, and pensions. These must be distributed as the individual has chosen after passing. In addition to preserving family wealth and providing for surviving spouses and children, many individuals will undertake serious estate planning to fund children or grandchildren’s education or leave their legacy to a charitable cause.
Specific estate planning tasks could include but are not limited to:
- Writing a will
- Limiting estate taxes by setting up trust accounts in the name of beneficiaries
- Establishing a guardian for living dependents
- Naming an executor of the estate to oversee the terms of the will
- Creating/updating beneficiaries on plans such as life insurance, IRAs, and 401(k)s
- Setting up funeral arrangements