4 Issues to Think About When Choosing an Attorney-in-Fact

When you choose an attorney-in-fact under a power of attorney, you will choose a representative who can protect and pursue your interests. Choosing the right attorney-in-fact is an essential part of creating power of attorney documents. Whether you decide to go with a family member, close friend, or an organization, you should approach the choice by considering several key issues.

Your Lawyer and Your Attorney-in-Fact

It’s very common for people to confuse powers of attorney, attorneys in fact, and lawyers. When you create a power of attorney document, you select someone who will represent your interests. That person will be called your attorney-in-fact or your agent.

Lawyers are people who are licensed to practice law. Creating a power of attorney and choosing an attorney-in-fact have nothing to do with lawyers. You don’t have to choose a lawyer to be your agent, you don’t have to be a lawyer yourself, and the person you choose doesn’t receive the right to practice law when you select them as your attorney-in-fact.

However, because powers of attorney are legal documents, you should always have your lawyer create them for you because they need to meet specific legal requirements.

Friends, Family, and Others

No two powers of attorney are identical, but each will require your attorney-in-fact to make certain types of decisions. Always approach your choice of attorney-in-fact by first considering the types of decisions your representative will have to make. If you feel that a close family member can make these decisions, choosing the person shouldn’t be a problem.

However, if you’re asking your attorney-in-fact to make complicated decisions, especially when it comes to financial concerns, you might consider hiring a more experienced person or an organization, such as a bank or trust company.

Proximity and Practicality

You’ll also want to consider where your attorney-in-fact is located. For example, if you are creating a medical power of attorney and will need your attorney-in-fact to meet with your local physicians, you’ll want to choose someone who is located in the area. If proximity is not a significant concern you can choose someone regardless of where he or she is located.

Willingness and Contingencies

You should always be certain that the person or organization you select as your attorney-in-fact is willing and capable of serving in the position. You cannot force someone to be your representative, and choosing an attorney-in-fact who is unwilling to serve will only cause problems.

Also, you need to be prepared for the possibility that your choice of representative will not be capable of serving when the time comes. Anyone can fall sick or have a change of heart, so you will need alternate agents who will be able to step in should your first choice no longer be capable of serving.

Author Bio

Catherine Hammond is the CEO and founder of Hammond Law Group, a Colorado-based estate planning law firm she founded in 2005. With a strong focus on protecting families from the legal consequences of disability and death, she creates comprehensive estate plans that minimize taxes, costs, and government interference.

A native of Denver, Catherine completed her undergraduate studies at Coe College in Iowa, and her Juris Doctorate from the University of Denver College of Law in 1993, concentrating on estate planning, tax, and mediation. Catherine is a member of various professional organizations, including WealthCounsel, ElderCounsel, the National Academy of Elder Law Attorneys, the Colorado Springs Estate Planning Council, and the Purposeful Planning Institute. Beyond her legal expertise, Catherine provides transformational coaching to support clients and their families through life transitions.

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