How Do I Choose the Best Attorney in Fact?

Mary McMahon
Mary McMahon

An attorney in fact has the power to act as an agent on behalf of another person, and it is important to select an individual who is trustworthy, competent, and knowledgeable for this position. It is not necessary to have a license to practice law to act as an attorney in fact, although it is certainly possible to ask a lawyer. It is common to choose family members and close friends. Part of the decision should also involve meeting with candidates to discuss the situation with them and find the party likely to be the best fit.

Businesswoman talking on a mobile phone
Businesswoman talking on a mobile phone

Before choosing an attorney in fact, it is a good idea to sit down and think about why one is necessary. This individual will have power of attorney, the ability to make legally binding decisions on behalf of another person. In general power of attorney, an attorney in fact can act in a wide variety of matters with essentially unlimited powers, while a special power of attorney restricts scope of power. An ill individual who needs an attorney in fact to make health-care decisions usually needs a special power of attorney, while an older adult concerned about mental competence might want a party with general power of attorney to make a variety of decisions when she is no longer legally able to do so.

Anyone acting as an attorney in fact is a fiduciary, and has a very specific duty to the person he represents. This includes looking after assets responsibly, not making decisions against a party's expressed wishes, and carefully evaluating all situations before making any legal decisions. A good choice would be an individual known to be reliable, trustworthy, attentive, and loyal. It is also important to select someone who will be able to act when necessary; parties who may be difficult to contact in an emergency are not a good choice.

It should be possible to generate a shortlist of candidates and arrange meetings with them. In the meeting, the party seeking an attorney in fact should outline the situation; she might need a person to make decisions for her children while she is traveling, for example, or could require someone with power of attorney to act on her behalf during medical treatment for a debilitating condition. The prospective legal representative should be made aware of the scope of responsibilities, the wishes of the party he will represent, and how long the power of attorney will last.

During the interview, both parties can determine if they would be a good fit for each other. Power of attorney is a serious responsibility and not everyone is prepared to take it on. Others may be willing, but might not be the best choice because they could violate the wishes of the parties they represent. It can be a good idea to ask about the kinds of decisions a prospective attorney in fact might make in hypothetical situations.

Mary McMahon
Mary McMahon

Ever since she began contributing to the site several years ago, Mary has embraced the exciting challenge of being a wiseGEEK researcher and writer. Mary has a liberal arts degree from Goddard College and spends her free time reading, cooking, and exploring the great outdoors.

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