What does “attorney in fact” mean?
Before we address the how of making this choice, a little nomenclature lesson is in order. The person you choose will be your “attorney in fact” and not your “power of attorney.” So if Aunt Mildred appoints Milly, then Milly is her attorney in fact, not her power of attorney. You will hear people say “He is my power of attorney,” when in fact what they should be saying is “He is my attorney in fact.” And, not that it matters in this discussion, but I have learned that there are a few judges who really don’t like it when you use the wrong term.
Now, how do you choose the person to be your attorney in fact? Spouses usually choose each other. Husband appoints wife and wife appoints husband as the attorney in fact. Their power of attorney documents usually mirror one another. But must a husband appoint his wife? No. There are times when the facts or the family relationships are such that it makes more sense to have a sibling or other family member in this place of high confidence. If, for example, one spouse is a part of a family run business, there may be financial considerations that suggest dividing the power of attorney document into financial and non-financial powers.
“Can you do that?” you ask?
Oh yes, you can do that. The person whom you appoint can do nearly anything you can do, just as if he or she is in your shoes. The attorney is the scrivener and guide who will help you choose the person who will best suit your individual needs.
Choose someone whose judgment you trust.
When choosing your attorney in fact, you should consider several factors. First, choose a person in whom you have a very high level of trust and confidence. Give thought to whom you trust now for advice and assistance. Most of us can make a fairly short list of those people. Choose someone from that list. Choose someone whose judgment you trust.
Choose someone who is your own age range or a little younger.
You should also consider age. If the person close to you, in whom you have a high level of trust and confidence is your 93 year old grandfather, perhaps he would not be the best choice. You are likely to out-live this grandfather (unless you are a 94 year old grandmother who has been married to him for 65 years). You need to choose someone who is your own age range or a little younger. You want someone who is going to be there, should you need him.
Choose someone who is geographically nearby.
You also need to consider geography. Not as in your sixth grade class, but your attorney in fact’s location in relation to where you live. Use of the power of attorney situations are often emergencies. . .occasions when there is no time to sit and think or to plan out the next moves. Things happen and someone needs to speak on your behalf right now. Having your attorney in fact a thousand miles away defeats the purpose. Choose someone who is at hand and can be summoned and present at a moment’s notice if necessary.
Choose someone you have a relationship with.
Should you choose a professional who you work with? Your physician will not serve as your attorney in fact (unless you are related to him or her). Ethical and legal considerations prevent this. So what about a professional like an attorney or accountant? A family member or close friend is a better choice. Choose someone you trust and have a relationship with. An attorney can be a good choice for a limited number of people, but should not be the first choice for most.
Please feel free to post a comment regarding your power of attorney stories. I would love to hear how you are handling these important issues.
The information presented herein is not intended as legal advice. You should talk with a qualified attorney about your situation, as each person’s estate planning needs are different.