Powers and Duties of an Attorney-in-Fact

What can I do as an attorney-in-fact?

            Powers of Attorney can be used for most everything but an attorney-in-fact can only do those acts that the Powers of Attorney specifies. Powers of Attorney should be written clearly so that the attorney-in-fact and third parties know what the attorney-in-fact can and cannot do. If you, as attorney-in-fact, are unsure whether or not you are authorized to do a particular act, you should consult the attorney who prepared the document.

What can’t I do as an attorney-in-fact?

            There are a few things that an attorney-in-fact is forbidden to do even if the Power of Attorney says otherwise. An attorney-in-fact may not sign a document stating that the principal has knowledge of certain facts. For example, if the principal was a witness to a car accident, the attorney-in-fact may not give a statement for the principal stating that the light was green. An attorney-in-fact may not vote in a public election for the principal, or create or revoke a will or codicil to a will. Nor may the attorney-in-fact perform personal services for the principal under a contract (such as paint a picture or write a –book).

            Likewise, if the principal was appointed by a court to be a guardian or Guardian for someone else, the attorney-in-fact cannot take over those responsibilities under the authority of the Power of Attorney.

Is there a certain code of conduct for attorneys-in-fact?

            Yes. Attorneys-in-fact must meet a certain standard of care when performing their duties. An attorney-in-fact is looked upon as a “fiduciary” under the law. A fiduciary relationship is one of trust. If the attorney-in-fact violates this trust, the law may punish the attorney-in-fact both civilly (by ordering the payments of restitution and punishment money) and criminally (probation or jail).

            The standard of care that applies to attorneys-in-fact is discussed below in the discussion on liability. No matter what, however, if the Power of Attorney legally authorizes a particular act, the attorney-in-fact cannot be held personally liable for doing that act.

To learn more about estate planning and elder law, visit Estate and Elder Planning by David Wingate at www.davidwingate.com. For an Initial Consultation, call (301) 663-9230. We can assist you with powers of attorneys, living wills, wills, trusts, Medicaid planning, and asset protection. With office locations in Frederick, Washington, and Montgomery Counties, Maryland, we are here to provide you with peace of mind.

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The information provided in this blog post is for general informational purposes only and should not be construed as legal advice. While we strive to provide accurate and up-to-date information, laws and regulations regarding dementia, estate planning, and elder law can vary by jurisdiction and may change over time.

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