Attorney in Fact

By James Parker
March 27, 2022

What Is an Attorney in Fact?

An attorney in fact is a title given to an individual who is authorized to act on behalf of another individual. The attorney in fact most often has the power to perform official transactions related to the other individual’s health, property, or financial accounts. 

Contrary to the name, an attorney in fact does not have to be a licensed attorney. Anyone can be assigned the title of attorney in fact including family members or friends. An attorney in fact can act under specific circumstances in order to perform duties that are necessary to the individual. These duties could include making medical decisions for the individual when they are not capable of making those decisions themselves, handling the estate and affairs of an individual who has passed, or making financial decisions on the behalf of the individual.

While the attorney in fact does have a lot of power over the individual’s affairs, it is not unlimited. The attorney in fact can only act on behalf of the individual with regards to the areas that the individual has granted. For example, if the individual does not give the attorney in fact the right to make medical decisions on their behalf, then the attorney in fact is incapable of leveraging any kind of authority in those matters.

Additionally, the attorney in fact has been delegated these powers by the individual, but the individual still retains their own rights as well. This means that the individual granting the attorney in fact their power can limit or revoke those powers. If the individual is still alive, they can contradict the attorney in fact and if they leave specific written instructions for the attorney in fact they will be required to act on those orders or lose their authority.

Key Takeaways

  • An attorney in fact is a person who is granted the power to make official decisions on behalf of another person.
  • An attorney in fact can make important financial or medical decisions, as well as orchestrating end-of-life affairs including the division of assets according to the deceased’s will.
  • Establishing an attorney in fact can be vital to ensuring that specific end-of-life affairs are handled according to the will of the deceased. 
  • If you want to establish a solid attorney in fact, an experienced Trusts & Estates attorney may be able to assist you with your case by utilizing experience and expert knowledge.

Attorneys in Fact, Trusts, and Estates

Attorneys in fact can become necessary at very unexpected times. The most obvious use of an attorney in fact is when an individual passes away. Unfortunately, an attorney in fact can be far more necessary than just serving as an executor for an individual’s will.

There are many situations in which an attorney in fact may be necessary. A simple surgical procedure could result in a complication that leaves the individual comatose. This complication could force the conscious family and friends to ask difficult questions about the best way forward and who, if anyone, has the right to make decisions for the comatose individual. However, with a designated attorney in fact, there is someone who has explicitly been delegated to make these decisions based on the individual’s belief that they will make the right choice. 

Attorneys in fact can also serve a useful role in the end of life care. Many people may suffer from dementia or other medical conditions that leave them unable to handle their own affairs. If a court believes an individual is no longer able to handle their own affairs, they may appoint a guardian. A guardian may not be a friend or family member, it may be a complete stranger. Additionally, unlike an attorney in fact, who is delegated the rights of the individual, a guardian takes the rights of the individual away entirely. 

The best way to avoid this unfortunate turn of events, and to ensure that an individual’s estate is divided according to their wants and needs, is to appoint an attorney in fact who can handle all the individual’s affairs, even if the individual is no longer able to do their necessary tasks for themselves. 

Bottom Line

If you want to ensure that your wishes are honored after your passing or just want to ensure that there is a clear person with the ability to make decisions in your best interest, you will need to establish an explicit attorney in fact. In order to ensure this decision is respected and backed up by the courts, you will need the assistance of a trusts & estates attorney.

An experienced trusts and estates attorney can draft an ironclad contract that clearly and indisputably establishes an attorney in fact while also limiting their power to only accomplish exactly what you want.

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