When it comes to estate plans, perhaps the single most confusing term people encounter is “attorneys-in-fact.” An attorney-in-fact plays a key role in almost every estate plan, so understanding it is essential. Today we are going to take a look at several commonly asked questions about an attorney in fact, and how it relates to your estate plan.
What are Attorneys-in-Fact?
An attorney-in-fact is a person appointed under the terms of a power of attorney. Attorneys-in-fact can be individuals or organizations, and can be any person who is at least 18 years old and willing to take on the responsibility of serving in the role. Attorneys-in-fact, once appointed, receive the legal authority to make decisions on behalf of another person. That other person, known as a principal, has to be a mentally capable adult when he or she creates a power of attorney that names and attorney-in-fact, but does not always have to remain mentally capable for the attorney-in-fact to make decisions on the principal’s behalf.
Is an Attorney-in-Fact a Lawyer?
No. Even though the term attorney-in-fact sounds like it involves lawyers, a lawyer and an attorney-in-fact are not the same thing. An attorney-in-fact is simply any capable person or organization who is appointed by someone else to act as that person’s representative. You do not have to be a lawyer to be an attorney-in-fact, nor do you have to be an attorney to appoint an attorney-in-fact. Further, if you are named as someone else’s attorney-in-fact, you do not receive the ability to practice law as a lawyer. Attorneys-in-fact are often referred to as agents, and the two terms are largely synonymous.
The only time an attorney plays a role with the appointments or duties of an attorney-in-fact is when that lawyer creates the power of attorney document for the principal. The document is the instrument through which the principal appoints the agent and should be drafted by a lawyer because each state has different laws about powers of attorney.
What is a Power of Attorney?
A power of attorney is a document that allows you to appoint an attorney-in-fact. Powers of attorney have to meet specific state laws in order for them to be effective, and can only be used by people who are capable adults. There are also different kinds of powers of attorney that give agents different types of authority, at different times.
Talking to an estate planning attorney is the best way to ensure that you can create a power of attorney that is both legally effective, and one that protects your interests.