The appointment of attorney in fact gives that person the authority to act and make decisions on your behalf. Depending on the state, this can also be called an agent or mandatary.

Who Can Be an Attorney-in-Fact

An attorney-in-fact is any person you select including a spouse, child, relative, friend, or lawyer who meet the following qualifications:

  • A legal adult based on the laws of their jurisdiction.
  • They cannot be in the process of filing for or have an undischarged bankruptcy.
  • They cannot be an employee, operator, or owner of the nursing or extended-care facility where you reside.

The person selected as an attorney-in-fact is not required to have specific qualifications or background. Instead, they should possess qualities that have your best interests in mind including being trustworthy, knowledgeable, and able to comprehend the nuances of your specific situation. The person should also meet the time commitment the role entails, an understanding of financial management, and the ability to maintain accurate and detailed financial records. The person you select can also hold the role of executor or a beneficiary of your Last Will & Testament.

Powers of An Attorney-in-Fact

The appointed attorney-in-fact does not have blanket control to assume power and authority over your matters. They only deal with the specific components detailed in the Power of Attorney. These components will vary on a case by case basis and may include matters related to:

  • Personal business
  • Legal situations
  • Real Estate
  • Finances
  • Tax obligations

In the example of a Medical Power of Attorney, this person is responsible for only matters related to your health. If a Health Care Directive, or Living Will, exist they will have guidelines to follow that you have clearly stated. This is often related to relaying your medical preferences including if you want to use life support measures if the need arises. If you are physically incapacitated or suffer from severe mental issues, a court order must be acquired to legally appoint a Medical Power of Attorney.

Most importantly, an attorney-in-fact is legally required to follow the direction's stipulated. Failure to do so without proper cause will result in the attorney-in-fact being liable for any damages incurred.

Power of Attorney

A Power of Attorney is a document that legally appoints the person to the position of the attorney-in-fact, agent, or mandatary. The document will state if it is related to financial, business, real estate, or other matters. Examples of how an attorney-in-fact can utilize a power of attorney include the following:

  • In finance, the attorney-in-fact is given the power to make payments, cash checks, manage bank accounts, and close accounts if necessary. If you require long-term hospital care, your cable, internet, or phone services may need to be suspended or closed.
  • With legal matters, the attorney-in-fact is allowed to file lawsuits, file any court documents, and communicate with your lawyer on legal matters related to you. In the situation where you are out of town during a divorce, the attorney-in-fact can act in your place including signing documents. You also have the power to limit what can be done including removing the ability to file lawsuits.
  • In real estate, an attorney-in-fact can handle all matters including:
    • Sales.
    • Rentals.
    • Trades.
    • Property management for residential, personal, and commercial properties.
  • In business, the attorney-in-fact can be your business manager and handle tasks such as decisions related to employment, budgets, and investments. They can also act as a proxy in meetings and vote in your place at board meetings.

Other situations where a power of attorney can be used by the attorney-in-fact include:

  • Maintaining family expenses such as medical expenses and school tuition.
  • Hiring professionals.
  • Managing tax requirements including filing and paying personal and corporate taxes.
  • Selling, exchanging and purchasing goods.
  • Distributing charitable donations.
  • Gifting money to friends and family.
  • Handling insurance transactions.
  • Managing a Living Trust.
  • Changing retirement plans and related benefits.

In any of these situations, you can set up a Specific Power of Attorney instead of a General Power of Attorney to limit the powers given to the attorney-in-fact. Additionally, you can choose to have different people manage different areas of your life or pick more than one person to handle the same matter. Joint attorneys-in-fact must make decisions together and at the same time. If one attorney-in-fact is not available, decisions cannot be made until the other becomes available.

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