Key Takeaways

  • An attorney at law is a licensed legal professional authorized to represent clients in court.
  • An attorney in fact is an agent granted power of attorney to act on someone's behalf but cannot practice law unless also licensed.
  • The two roles differ in authority, training, and legal standing.
  • An attorney in fact can only act within the scope of authority granted by the power of attorney.
  • An attorney at law has professional obligations like confidentiality, legal advocacy, and representation before a court.

Attorney in fact vs. attorney at law — what's the difference? An attorney in fact is an agent who is authorized to act on behalf of another person but isn't necessarily authorized to practice law. An attorney at law is a lawyer who has been legally qualified to prosecute and defend actions before a court of law.

What Is Attorney At Law?

An attorney at law is permitted to represent another individual in the practice of law but is not allowed to make decisions on their behalf. This includes any decision-making, such as whether or not to settle. This term originated in England, where lawyers who were authorized to practice in the common law courts were referred to as attorneys at law.

In the British legal system, different terminology was used based on the type of law that was practiced. For example, the term "private attorney" was used for the one hired for business or legal affairs, whereas an attorney at law, or public attorney, was the qualified legal agent in the Common Law courts. At the turn of the 19th century, the distinction was eventually abolished when lawyers became known as solicitors. However, in the U.S., the term was adopted to refer to any law practitioner.

Key Responsibilities of an Attorney at Law

An attorney at law has a wide range of responsibilities that stem from their legal training and licensure to practice law. These duties include:

  • Representing clients in legal proceedings such as trials and hearings
  • Offering legal advice and interpreting the law for clients
  • Drafting legal documents like contracts, wills, and pleadings
  • Negotiating settlements and advocating on behalf of clients
  • Maintaining ethical standards and confidentiality in client relationships

Attorneys at law are held to high professional standards and must comply with the ethical rules established by their state's bar association. They may specialize in various areas such as criminal defense, family law, corporate law, or personal injury law.

What Is an Attorney In Fact?

An attorney in fact is an agent who is authorized to act on behalf of another person but is not necessarily authorized to practice law. Their responsibilities and power depend on what's specifically stated in the power of attorney document.

If you want to become someone's attorney in fact, you must have them sign a power of attorney document. This will designate you as their agent and allow you to perform any actions on their behalf. An attorney in fact doesn't have a client. Instead, this person is called a "principal." There are two types of an attorney in fact:

  • General power of attorney: Allows the attorney to conduct all business and sign documents on behalf of another person.
  • Special power of attorney: Allows a person to conduct business and sign documents on behalf of another person, but only in specific situations.

Remember, the power of attorney document outlines when an attorney can act on another person's behalf, even in the case of a special power of attorney. An attorney in fact doesn't have the authorization to file legal actions or to represent their principal in court. An attorney in fact has the right to make decisions for another person who's been granted those powers. However, this title doesn't allow you to practice law, unless you're representing yourself.

How to Become an Attorney In Fact

Unlike an attorney at law, becoming an attorney in fact does not require a legal education or passing the bar exam. To become an attorney in fact:

  1. The principal (the person granting authority) must execute a Power of Attorney (POA) document.
  2. This document must clearly outline the scope of authority being granted.
  3. The document must be signed, and in some states, notarized or witnessed.

The attorney in fact is legally bound to act in the best interest of the principal and must follow any limitations outlined in the POA. The role can be temporary or durable (remaining in effect even if the principal becomes incapacitated), depending on the type of POA selected.

The Powers and Duties of an Attorney In Fact

If designated as a general power of attorney, an attorney in fact can conduct any spending or investment actions that the principal would normally make. Therefore, the duties of an attorney in fact may include:

  • Withdrawing funds
  • Opening and closing bank accounts
  • Trading stocks
  • Paying bills
  • Cashing checks

For example, a parent may designate a child a general power of attorney. By granting their child this title, the parent may receive help with bills and financial matters that may have become too difficult for them to handle. This usually occurs when the parent has become bedridden, immobile, or can't travel to take care of financial matters.

If a principal is not comfortable giving that much power to someone else, rather than designate a general power of attorney, they can decide to appoint an attorney in fact as a special power of attorney. For example, if a parent is generally healthy but undergoes surgery, they may grant their child special power of attorney until they recover or decide to revoke it.

It is important to note that all attorneys in fact have a fiduciary duty. The responsibilities of a fiduciary include:

  • Keeping the best interest of the principal in mind
  • Making financial decisions using the highest standards of good faith
  • Keeping a principal's wishes and goals in mind at all times
  • Being fair and loyal in all decision-making

An attorney in fact's power is limited in two important ways:

  • Once a person passes away, an attorney in fact loses all power. An attorney in fact is only allowed to act while the principal is still alive.
  • An attorney in fact only has control over assets that are not held in a trust. Rather, trust assets are always governed by a trustee.

Legal Limitations of an Attorney In Fact

While an attorney in fact may have broad authority over financial or medical decisions, there are key legal limitations to their role:

  • No court representation: They cannot represent the principal in legal proceedings unless they are also a licensed attorney at law.
  • No independent decision-making: Their powers are strictly limited to those granted in the POA.
  • Term of authority: The authority typically ends when the principal dies or revokes the POA.
  • No authority over trust assets: Assets held in a trust are not managed by an attorney in fact but by a designated trustee.

These boundaries ensure that an attorney in fact operates within clearly defined limits and cannot overstep their role.

Frequently Asked Questions

1. Can an attorney in fact give legal advice? No. An attorney in fact is not licensed to practice law and cannot give legal advice unless they are also a licensed attorney at law.

2. Is a lawyer the same as an attorney at law? In the U.S., the terms are often used interchangeably. However, “attorney at law” specifically refers to someone licensed to represent clients in court.

3. Can one person be both an attorney in fact and an attorney at law? Yes. A licensed lawyer can also act as an attorney in fact for someone if granted that role through a power of attorney document.

4. Does a power of attorney grant authority after death? No. All powers granted to an attorney in fact terminate upon the death of the principal.

5. How do you revoke a power of attorney? A principal can revoke a power of attorney at any time by issuing a written revocation and notifying all relevant parties.

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