Agency by Necessity

Agency by necessity is a type of relationship in which one party can make essential decisions for another party. The courts recognize agency by necessity. In finance, agency by necessity often takes the form of replacing an individual’s investment or retirement decisions.

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.

Although many conduct their estate planning prior to 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 takes 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 play 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 spouse and children, many individuals will undertake serious estate planning in order to fund children and/or grandchildren’s education or leave their legacy behind 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