Attorney In Fact: What’s the Skinny?

Every now and then situations present themselves that require special assistance. In some cases, that means you need someone to make decisions and sign documents on your behalf. With a little research, you will quickly find you need something called an attorney-in-fact. Signing your decisions over to someone should not be taken lightly. Therefore, you need to fully understand the rights and responsibilities of an attorney-in-fact. In this article, we are going to answer all of your questions and more regarding the mysteries of the attorney-in-fact.

What is an Attorney-in-Fact?

An attorney-in-fact is a person who you choose to act on your behalf regarding personal or business related transactions. Interestingly enough, an attorney-in-fact does not have to be a trained attorney. You can choose anyone you know and trust to be your attorney-in-fact.

Sometimes called an “agent”, an attorney-in-fact is used for a number of reasons. For example, if a person is ill or of advanced age, they may want an attorney-in-fact to take over their affairs. More simply, a business person may assign a trusted employee attorney-in-fact status to deal with foreign business when they cannot be physically present.

No matter the occasion, an attorney-in-fact needs a power of attorney to make it official.

What is Power of Attorney?

A power of attorney is a document that officially makes someone an attorney-in-fact. Power of attorney (POA) documents are fairly simple but carry immense weight. Choosing an attorney-in-fact for your POA should not be taken lightly. We will discuss how to choose in attorney-in-fact in more detail later in this article.

For now, let’s discuss the types of POA documents and the various forms of power they provide.

Types of Power of Attorney

As previously stated, there are a number of reasons someone may need an attorney-in-fact. Therefore, it stands to reason that there are various types of forms and priveledges you can give them. While the following POA’s serve different purposes, they all must be notarized in order to be legally binding. There are four primary types of power of attorney documents: general, durable, special, and health care.

1. General Power of Attorney

As the name suggests, a general power of attorney gives the attorney-in-fact expansive powers. A general power of attorney can be ideal if you are going out of the country and need someone to handle certain affairs on the homefront while you are away. Furthermore, a general POA is best suited in situations where you are physically or mentally incapable of handling your own affairs.

With a general power of attorney, the attorney-in-fact can legally act for you in a variety of situations. Such as:

Settling legal claims
Purchasing life insurance (or altering the policy)
Managing business operations
Handling additional types of business and financial dealings

Often times, people will assign a general POA when settling their estate. You have the option to assign dates or circumstances in which the general power of attorney would become active.

2. Durable Power of Attorney

Sometimes unforeseen circumstances call our choices into question. Illness and accidents can either physically or mentally affect your ability to make decisions. However, in many cases, you wouldn’t want your estate to change. Therefore, having a durable power of attorney is a good idea. A durable power of attorney helps protect you and your assets in the event of incapacitation.

In a durable POA, you have the ability to require medical testing to determine your mental state. In fact, you can choose a specific doctor to do so. Additionally, you can require that two different doctors test you to further ensure a proper diagnosis. This all may sound like overkill, but you can never be too careful when it comes to managing your livelihood.

3. Special Power of Attorney

With a special power of attorney, you can dictate specific powers to your attorney-in-fact. This type of POA is ideal for when extenuating circumstances present themselves. For example, if you are a business owner and cannot be present for the signing of an important document. In this case, you could have your attorney-in-fact sign on your behalf, and their authority would only exist for that specific occasion. A special power of attorney may also be used for the following:

Managing personal or business transactions
Buying/selling property
Collecting on debts
Dealing with business transactions

These are just a few uses for a special POA. There are many circumstances in which a special power of attorney may work for you and your family or business.

4. Health Care Power of Attorney

The final type of POA is a healthcare power of attorney. As you may suspect, a healthcare POA is used to give your attorney-in-fact the power to make medical decisions on your behalf. In the event you become mentally incompetent or unconscious, your attorney-in-fact will be in charge of making important medical decisions. With a healthcare power of attorney, you can include your preferences regarding certain things like life support.

However, the healthcare power of attorney is not the same things as a living will. A living will is essentially your how-to guide about your personal preferences regarding an end-of-life plan. Some states allow you to mix both healthcare POA’s and living wills to make an advanced healthcare plan.

Choosing Your Power of Attorney Document

Clearly, you have some options when it comes to selecting a power of attorney document. While the aforementioned POA’s serve different purposes, it can be confusing choosing which is best suited to your needs. Furthermore, many states have different laws regarding the powers given to attornies-in-fact. Therefore, you should consult an attorney in your state to make sure you have the best plan for your state-specific laws.

How to Choose an Attorney-In-Fact

Clearly, defining the powers of your attorney-in-fact are important when selecting a power of attorney. Additionally, it is equally as important to use care when selecting the right attorney-in-fact. Keep in mind, you are giving this person the right to make decisions on your behalf. Often times, these decisions are regarding high-stakes financial, legal, or medical matters.

Two major qualities to look for are trust and dependability. You need to trust your attorney-in-fact to act selflessly and in your best interest. Furthermore, you need to choose someone you can count on to show up for you – sometimes time and time again. An attorney-in-fact is not a paying job. Therefore, you need to select someone that cares about you and your well being enough to help you for free. You can choose a family member, friend, or even a business as an attorney-in-fact.

Multiple Attornies-in-Fact

Interestingly enough, you can assign more than one attorney-in-fact. This can be a helpful way to establish a sort of check-and-balances system regarding your estate. However, sometimes adding multiple opinions to the pot can make decisions trickier and longer to process.

Attorney-in-Fact vs. Executor. vs. Trustee

To better understand the logistics of an attorney-in-fact, let’s go over some additional legal terms. Specifically, we are going to outline the differences between an attorney-in-fact, an executor, and a trustee.

Executor Definition

An executor is appointed by a person to handle their affairs after they pass away. You will likely hear the term executor utilized in relation to a will. A persons last will and testament details the fate of their estate. All of their assets, both valuable and sentimental, will be divided amongst friends and family as the holder of the will sees fit. An executor is the person responsible for seeing the wishes of their will through.

Like an attorney-in-fact, an executor can be anyone of your choosing. However, people often select attornies or lawyers to act as there executor.

Define Trustee

Like an executor or an attorney-in-fact, a trustee is correlated with a specific type of document. As we have discussed, an attorney-in-fact is given powers via a power of attorney. An executor is appointed through a will. A trustee, on the other hand, is tied to a trust. A trust is a way of placing assets under the ownership or control of a trustee.

A trust can include any number of assets, but most often includes money or property. The trustee is the legal owner of the assets within the trust. However, the trustee has ownership specifically to benefit the trust itself.

Power of Attorney After Death

What happens when the principle (aka the person who prompted the POA) dies? Sadly, when a principle dies, so do their power of attorney documents. Therefore, if you are an attorney-in-fact for someone who passes away, your power and duties end with their death.

This is where the aforementioned distinctions come in. As previously discussed, an executor is in charge of managing a persons post-mortem affairs. One person can, in fact, be an attorney-in-fact and an executor for another person. However, it is important to understand the differences in these roles and the powers they are given.

How to Notarize a Power of Attorney

Despite the different types of POA’s, there is one major similarity. All power of attorney documents need to be notarized. Given the amount of power an attorney-in-fact is given, it is vital to take this extra step. Notarization is an age-old act that helps fight fraud. Specifically, notarization makes documents more official in the eyes of the law. An unbiased witness, or notary, will oversee and approve of the signing of important documents. In order to properly notarize a power of attorney, it is best to come to your appointment prepared. Read on to find out everything you need to make your notarizations go smoothly.

1. The Power of Attorney (Document)

First of all, a notary is not a lawyer. Therefore, they do not provide or draft legal documents on your behalf. In fact, a notary is not legally allowed to give you legal advice regarding the contents of your document. Therefore, it is vital to come to your notary appointment with your power of attorney document in hand. Be sure you understand the document in full beforehand. If you have any questions regarding the legal specifics of your document, consult a lawyer prior to your notary visit.

Additionally, it is a good idea to have your document fully prepared prior to your appointment. Fill in any and all blank queries such as name, date, and contact information. However, resist the urge to sign or initial anywhere. Most states require that you sign the document in the physical presence of your notary.

2. Valid Proof of Identity

A cornerstone of successful notarization is proper identification of the signer(s). Therefore, be sure to double check that you have a valid form of photo i.d. with you. A valid driver’s license or passport are the most commonly accepted examples. In general, an accepted i.d. for notarizations should include the following elements:

An accurate, recent photo of you
A brief physical description (hair color, height, eye color)
The issuing authority (i.e. the United States of America for a U.S. passport)
Your signature

That being said, your birth certificate and social security card are unacceptable. However, state-issued i.d. cards and military identification will usually work. Bear in mind that every state has different rules and regulations. Be sure to check with your notary before you go in to make sure you come bearing the appropriate form of i.d. for your state.

3. All Necessary Signers

It is incredibly common for documents requiring notarization to need the signature of more than one person. If that is the case, you can save time and money by bringing all necessary parties to the same notary appointment.

Sadly, this is not always physically possible. Sometimes, the required signers live in different states or even different counties. Worry not, you can still get your document notarized legally. A document can be notarized multiple times and by multiple different notaries. However, the contents of the document cannot be altered between notaries. If there are any changes or amendments made, the notary process will have to start over. This ensures that all signers are aware and in agreement with the contents of the document.

4. Payment for the Notary

As with any service, the use of a notary comes at a price. Most notaries charge on a per-signature basis. These fees vary based on the notaries experience level and location. However, many states legally mandate a maximum fee a notary can charge. In California, for example, notaries cannot charge more than $10 per signature.

Be sure to check with your notary about their availability and fees prior to your appointment.

Lawyer vs. Notary

As briefly mentioned earlier in this article, a notary is a totally different role from a lawyer. To further illustrate this point, let’s discuss the difference in training.

A practicing attorney must successfully complete years of training and education. Moreover, most lawyers will hold various internships or apprenticeships with more established lawyers before going into practice themselves. Finally, a lawyer must pass a rigorous test known as the bar exam. The bar is a notoriously hard test that takes many people multiple tries to pass. Furthermore, attornies are specifically trained on state-specific laws relative to where they are practicing.

A notary, on the other hand, can be anyone over the age of 18 with no criminal record. A mere nine states require notary candidates to complete any sort of training. The states that do require training, provide a course that, at most, lasts a total of six hours. You can see why most notaries are not qualified to give you legal advice. Especially with documents regarding important legal or financial matters (like powers of attorney), be sure to consult a licensed attorney to answer any and all questions you may have.

Notary Near Me

Once you have all your legal questions answered, you shouldn’t have to go far to find a notary near you. With millions of notaries in America, you have options when it comes to picking a notary in your area. Read on to find out a few places you can find the services of a certified notary.

1. Local Businesses

Many businesses find it helpful to keep a notary on staff to help expedite in-office notarizations. Therefore, you can typically find a notary at many local offices. Start your search by checking at the following places.

Real estate offices
Car or home insurance agencies
Car dealerships
AAA offices
Your place of business! Ask around your office, you may have a coworker who is a notary!

Better yet, notaries are servants of the public. Therefore, you do not have to be a customer or a client of any of the above businesses in order to utilize their notary.

2. The Public Library

Remember the good ole’ days of reading tangible books? Well, real books and the libraries that house them still exist! Take a trip down memory lane and treat yourself to the nostalgic experience of a library. Not only will you find thousands of books, movies, classes, and newspapers, but you can find the services of a notary as well. Better yet, libraries typically have very affordable notary fees. While you are in there, be sure to pick up a book or two. Enjoy the splendors or reading (and smelling) paper instead of a computer screen.

3. Universities and Colleges

Many towns and cities, big or small, have a local college or university around somewhere. Students and faculty can often reap the reward of affordable or free notary services. Check with your local education establishments about their notary fees and availability.

4. Various Mail Stores

For a real one-stop-shop, try your local mail stores. You can pack, ship, notarize, and mail all in one place. Specifically, the UPS Store and Mail Boxes, Etc have been known to provide notary services on site.

Better yet, these type of stores typically operate outside of regular business hours. This gives you a bigger time frame and more flexibility when it comes to finding a notary near you. Be sure to call ahead to confirm notary availability and fees.

5. Mobile Notary

Why run the roads searching for a notary when they can come straight to you? Many cities boast the time-saving splendor of mobile notaries. A mobile notary will come to a place of your choosing, typically your home or office. No need to kick yourself for leaving your i.d. at home here!

Like typically notaries, mobile notaries charge on a per-signature basis. However, mobile notaries will typically charge an additional fee to cover travel time and expenses. Check with your local mobile notary service about their specific fees and availability today.

Attorney-in-Fact: In Summary

Choosing an attorney-in-fact is an important decision that should not be taken lightly. An attorney-in-fact is a vital instrument in managing your affairs should you become unavailable or incapacitated. You have the ability to choose your attorney-in-facts powers by selecting the perfect power of attorney documents to suit your needs. Be sure to get your power of attorney notarized to make it official.