Attorney in Fact
What Is an Attorney-in-Fact
An Attorney-in-Fact is a person appointed by an individual (known as the principal) who is legally empowered to act on their behalf for legal or financial matters according to a notarized and fully active power of attorney (POA) document.
Once selected and instated, the Attorney-in-Fact, also commonly known as an agent or madatary, is able to perform a number of duties for the principal. These fiduciary duties are normally outlined in the initial agreement and can be done without the appointing individual being present [1].
Who Needs an Attorney-in-Fact
There are a number of reasons someone may need to appoint an Attorney-in-Fact. You will need An Attorney-in-Face if you need to complete an agreement or make an important decision but cannot attend to due to:
- Physical incapacitation
- Mental incapacitation
- Travel commitments
- Illness
Importance of an Attorney-in-Fact
The Attorney-in-Fact, who doesn't need to be a lawyer, is allowed to perform actions on your behalf, such as managing finances or handling legal documents, ensuring that your interests are protected and well managed in your absence.
By establishing an Attorney-in-Fact, you will give yourself peace of mind by knowing that your interests will be protected in the event of your incapacitation [2].
How Does an Attorney-in-Fact Differ From a Legal Attorney
An Attorney-in-Fact is quite different from an Attorney-at-Law. Firstly, the person appointed as Attorney-in-Fact does not need to be a legal professional.
Review the table below to better understand the difference between an attorney and Attorney-in-Fact.
| Attorney-in-Fact | Legal Attorney |
|---|---|
| Does not need to be a legal expert or certified in any way. | Needs to be an expert in law and fully accredited to practice. |
| Can be anyone that the appointing individual chooses if they are over 18 years of age and sound of mind (§709.08) | Must possess a full Juris Doctor (JD) qualification and have passed their state’s BAR exam. |
The agent named in a Power of Attorney agreement can be anyone that the appointing individual chooses. They should be someone they trust and must be legally competent to enter into a legal agreement by being over 18 years of age and sound of mind (§709.08).
An Attorney-at-Law, on the other hand, needs to be fully expert in law and accredited to practice. They must possess a full Juris Doctor (JD) qualification and must have passed their state’s BAR exam. You are not required to use an Attorney-at-Law as an agent but can do so if you choose.
Attorney-in-Fact Examples
There are different individuals you can ask to act as your Attorney-in-Fact, depending on your circumstances.
Below are different examples of how appointing an Attorney-in-Fact can help manage your interests:
When dealing with real estate matters:
Jacob is a real estate investor based in Los Angeles, owning several properties across the city. He's deeply involved in managing these properties, from overseeing renovations to negotiating lease agreements.
Jacob needs to travel to Asia for six months for a personal sabbatical. During this time, he won't be able to handle the day-to-day management of his real estate investments.
To keep his real estate affairs in order, Jacob appoints his sister, Sarah, as his Attorney-in-Fact through a power of attorney. Sarah, who has a good understanding of Jacob's business and shares his investment philosophy, is entrusted with this responsibility.
Jacob's attorney drafts a detailed power of attorney document, which clearly outlines Sarah's roles and limitations. This document grants her the authority to manage his properties. She can negotiate and sign lease agreements, oversee property maintenance, handle tenant issues, collect rents, and even make decisions on buying or selling properties as opportunities arise.
For the next six months, Sarah acts in Jacob's stead, ensuring his real estate investments are well-managed and continue to yield returns. She has the legal authority to make decisions and take actions that align with Jacob's investment strategies and goals.
When dealing with healthcare decisions:
Linda, a retired school teacher in Boston, has been diagnosed with a condition that may soon impair her ability to make her own healthcare decisions. Understanding the importance of planning for her future, Linda decides to take proactive steps.
She chooses her son, Mark, a nurse practitioner, to be her Attorney-in-Fact specifically for healthcare decisions. Linda trusts Mark's medical knowledge and his understanding of her personal values and wishes regarding her health.
To formalize this arrangement, Linda's lawyer drafts a Healthcare Power of Attorney document. This document clearly outlines the scope of Mark's authority and the specific situations in which he can act. It grants Mark the power to make healthcare decisions on Linda's behalf if she becomes unable to do so herself. This includes decisions about medical treatments, surgical procedures, choosing or changing healthcare providers, and end-of-life care preferences.
As Linda's Attorney-in-Fact for healthcare, Mark is now prepared to ensure that her medical care aligns with her wishes and best interests, providing her with peace of mind about her future health management.
Attorney-in-Fact Substitution
An Attorney-in-Fact substitution is when the original person designated to make decisions on someone's behalf is replaced by another individual [3]. According to the Code of Federal Regulations (§306.95): “An assignment by a substitute attorney-in-fact must be supported by an authorizing power of attorney and power of substitution.”
Example:
John appointed his brother, Alex, as his Attorney-in-Fact to manage his finances while he was abroad. However, Alex had to unexpectedly move for a job opportunity, making it difficult for him to manage John's affairs effectively. John then decided to substitute Alex with his close friend, Emma, who was more readily available and equally trustworthy.
John's lawyer drafted a new power of attorney document, revoking Alex's authority and legally appointing Emma as the new Attorney-in-Fact. This document specified Emma's new role and responsibilities. John then notified his bank and other relevant entities about this change to ensure Emma's authority was recognized for managing his financial matters.
Powers and Duties of an Attorney-in-Fact
Once a Power of Attorney form has been completed and brought into use, an agent can perform many different tasks for the principal. This, however, depends on the type of POA which is in use.
General Power of Attorney
A Power of Attorney normally comes to an end when it is revoked or the principal is incapacitated. This means that the responsibilities focus almost exclusively on handling financial matters for the individual. This can include the following:
- Managing, buying and selling real estate
- Buying and selling stocks
- Making business transactions
- Collecting government and military pensions
- Paying bills and debts
- Cashing checks
- Opening and closing bank accounts
Get Your Power of Attorney Here
Durable or Medical Power of Attorney
The Attorney-in-Fact’s role for a Durable Power of Attorney can differ significantly in nature from a General POA.
This is because durable documents may continue to be used even if the principal is incapacitated. These will normally continue in use until the death of the appointing individual [4].
A financial Durable POA offers many of the same powers as a General POA. However, another form of Durable Power of Attorney is a Medical POA, which requires very different arrangements to be made for the principal.
Medical POAs focus on healthcare decisions for incapacitated individuals. This empowers agents to make choices for a principal on the following subjects:
- End-of-life care
- Treatment plans
- Which doctors or specialists can perform on the patient
- Approving or denying medical treatment
Get Your Durable Power of Attorney Here
[1] Power of Attorney. American Bar Association.
[2] What is a power of attorney (POA)?. Consumer Financial Protection Bureau.
[3] Consumer Pamphlet: Florida Power of Attorney. The Florida Bar.
What Is an Attorney-in-Fact
An Attorney-in-Fact is a person appointed by an individual (known as the principal) who is legally empowered to act on their behalf for legal or financial matters according to a notarized and fully active power of attorney (POA) document.
Once selected and instated, the Attorney-in-Fact, also commonly known as an agent or madatary, is able to perform a number of duties for the principal. These fiduciary duties are normally outlined in the initial agreement and can be done without the appointing individual being present [1].
Who Needs an Attorney-in-Fact
There are a number of reasons someone may need to appoint an Attorney-in-Fact. You will need An Attorney-in-Face if you need to complete an agreement or make an important decision but cannot attend to due to:
- Physical incapacitation
- Mental incapacitation
- Travel commitments
- Illness
Importance of an Attorney-in-Fact
The Attorney-in-Fact, who doesn't need to be a lawyer, is allowed to perform actions on your behalf, such as managing finances or handling legal documents, ensuring that your interests are protected and well managed in your absence.
By establishing an Attorney-in-Fact, you will give yourself peace of mind by knowing that your interests will be protected in the event of your incapacitation [2].
How Does an Attorney-in-Fact Differ From a Legal Attorney
An Attorney-in-Fact is quite different from an Attorney-at-Law. Firstly, the person appointed as Attorney-in-Fact does not need to be a legal professional.
Review the table below to better understand the difference between an attorney and Attorney-in-Fact.
| Attorney-in-Fact | Legal Attorney |
|---|---|
| Does not need to be a legal expert or certified in any way. | Needs to be an expert in law and fully accredited to practice. |
| Can be anyone that the appointing individual chooses if they are over 18 years of age and sound of mind (§709.08) | Must possess a full Juris Doctor (JD) qualification and have passed their state’s BAR exam. |
The agent named in a Power of Attorney agreement can be anyone that the appointing individual chooses. They should be someone they trust and must be legally competent to enter into a legal agreement by being over 18 years of age and sound of mind (§709.08).
An Attorney-at-Law, on the other hand, needs to be fully expert in law and accredited to practice. They must possess a full Juris Doctor (JD) qualification and must have passed their state’s BAR exam. You are not required to use an Attorney-at-Law as an agent but can do so if you choose.
Attorney-in-Fact Examples
There are different individuals you can ask to act as your Attorney-in-Fact, depending on your circumstances.
Below are different examples of how appointing an Attorney-in-Fact can help manage your interests:
When dealing with real estate matters:
Jacob is a real estate investor based in Los Angeles, owning several properties across the city. He's deeply involved in managing these properties, from overseeing renovations to negotiating lease agreements.
Jacob needs to travel to Asia for six months for a personal sabbatical. During this time, he won't be able to handle the day-to-day management of his real estate investments.
To keep his real estate affairs in order, Jacob appoints his sister, Sarah, as his Attorney-in-Fact through a power of attorney. Sarah, who has a good understanding of Jacob's business and shares his investment philosophy, is entrusted with this responsibility.
Jacob's attorney drafts a detailed power of attorney document, which clearly outlines Sarah's roles and limitations. This document grants her the authority to manage his properties. She can negotiate and sign lease agreements, oversee property maintenance, handle tenant issues, collect rents, and even make decisions on buying or selling properties as opportunities arise.
For the next six months, Sarah acts in Jacob's stead, ensuring his real estate investments are well-managed and continue to yield returns. She has the legal authority to make decisions and take actions that align with Jacob's investment strategies and goals.
When dealing with healthcare decisions:
Linda, a retired school teacher in Boston, has been diagnosed with a condition that may soon impair her ability to make her own healthcare decisions. Understanding the importance of planning for her future, Linda decides to take proactive steps.
She chooses her son, Mark, a nurse practitioner, to be her Attorney-in-Fact specifically for healthcare decisions. Linda trusts Mark's medical knowledge and his understanding of her personal values and wishes regarding her health.
To formalize this arrangement, Linda's lawyer drafts a Healthcare Power of Attorney document. This document clearly outlines the scope of Mark's authority and the specific situations in which he can act. It grants Mark the power to make healthcare decisions on Linda's behalf if she becomes unable to do so herself. This includes decisions about medical treatments, surgical procedures, choosing or changing healthcare providers, and end-of-life care preferences.
As Linda's Attorney-in-Fact for healthcare, Mark is now prepared to ensure that her medical care aligns with her wishes and best interests, providing her with peace of mind about her future health management.
Attorney-in-Fact Substitution
An Attorney-in-Fact substitution is when the original person designated to make decisions on someone's behalf is replaced by another individual [3]. According to the Code of Federal Regulations (§306.95): “An assignment by a substitute attorney-in-fact must be supported by an authorizing power of attorney and power of substitution.”
Example:
John appointed his brother, Alex, as his Attorney-in-Fact to manage his finances while he was abroad. However, Alex had to unexpectedly move for a job opportunity, making it difficult for him to manage John's affairs effectively. John then decided to substitute Alex with his close friend, Emma, who was more readily available and equally trustworthy.
John's lawyer drafted a new power of attorney document, revoking Alex's authority and legally appointing Emma as the new Attorney-in-Fact. This document specified Emma's new role and responsibilities. John then notified his bank and other relevant entities about this change to ensure Emma's authority was recognized for managing his financial matters.
Powers and Duties of an Attorney-in-Fact
Once a Power of Attorney form has been completed and brought into use, an agent can perform many different tasks for the principal. This, however, depends on the type of POA which is in use.
General Power of Attorney
A Power of Attorney normally comes to an end when it is revoked or the principal is incapacitated. This means that the responsibilities focus almost exclusively on handling financial matters for the individual. This can include the following:
- Managing, buying and selling real estate
- Buying and selling stocks
- Making business transactions
- Collecting government and military pensions
- Paying bills and debts
- Cashing checks
- Opening and closing bank accounts
Get Your Power of Attorney Here
Durable or Medical Power of Attorney
The Attorney-in-Fact’s role for a Durable Power of Attorney can differ significantly in nature from a General POA.
This is because durable documents may continue to be used even if the principal is incapacitated. These will normally continue in use until the death of the appointing individual [4].
A financial Durable POA offers many of the same powers as a General POA. However, another form of Durable Power of Attorney is a Medical POA, which requires very different arrangements to be made for the principal.
Medical POAs focus on healthcare decisions for incapacitated individuals. This empowers agents to make choices for a principal on the following subjects:
- End-of-life care
- Treatment plans
- Which doctors or specialists can perform on the patient
- Approving or denying medical treatment
Get Your Durable Power of Attorney Here
[1] Power of Attorney. American Bar Association.
[2] What is a power of attorney (POA)?. Consumer Financial Protection Bureau.
[3] Consumer Pamphlet: Florida Power of Attorney. The Florida Bar.