Power of Attorney Basics

Power of Attorney

A power of attorney (POA) is a document that serves as a legal, written authorization.  In a POA you appoint another person to handle your affairs for you. This person may represent or act on your behalf in private affairs, business, or some other legal matter. (Note: This person cannot represent you as an attorney, but may be able to deal with your attorney on your behalf.)

 

Principal

 

The person authorizing the other to act is referred to by several names, such as principal, grantor, or donor (of the power).  Throughout this paper we will use the term Grantor.

 

Attorney-in-Fact (or Agent)

 

The person authorized to act on your behalf is referred to as the agent, donee, or attorney-in-fact.  Please do not confuse the title, attorney-in-fact with the term attorney-at-law.  An attorney-at-law is a lawyer licensed to practice law in a particular jurisdiction. An Attorney-in-Fact may be paid or not.  This decision is up to the Grantor of the power of Attorney. If the Attorney-in-Fact is paid, it is normally arranged pursuant to contract, discussed below.

 

Role of the Attorney-in-Fact

 

The Attorney-in-Fact serves as the agent of the Grantor. He/she acts on the agents behalf as an authorized representative. This relationship is known as a fiduciary relationship.  The Attorney-in-Fact is the fiduciary of the Grantor.   A fiduciary must be completely honest with and loyal to the Grantor in their dealings with each other.

 

Contract to Act as Attorney-in-Fact

 

Often times a specific relationship will require a power of attorney.  In such a situation there may be a contract between the Grantor and Agent to act as the attorney-in-fact.  This contract often includes terms of payment or compensation to the Attorney-in-Fact.  If the attorney-in-fact is being paid to act for the principal, the contract is usually separate from the power of attorney.

 

Successor Attorney-in-Fact (or Successor Agent)

A power of attorney allows you to indicate or appoint back-up or successor Agents.  The first person you appoint may be unwilling or unable to serve as your agent. As a general rule, it is a good idea to appoint one or more successor agents.  There are an infinite number of situations that could arise to keep the person you appoint from acting as your agent. The gravity or timeframe of the situation may require someone to act immediately.

You can include language in your Power of Attorney to allow the agents you appoint to act only if the Agent ahead of them certifies that he is unable or unwilling.  Or you can indicate that your Agents can as your Agents at the same time, either independently or collectively.  There are numerous ways that you can structure how authority vests in the person you appoint as your agent.

Revocation of Power of Attorney

A power of attorney is always revocable.  Even in the event of a contract to not revoke the power of attorney, the actually authority may be revoked.  However, this may lead to a claim for breach of contract or fraud.

Generally, the power of attorney can be revoked by telling the Agent holding the power of attorney that it is revoked.  However, you should not rely on this form of revocation.  When revoking a power of attorney you should retrieve the actual document and destroy it.  Also, you should send notification to any institutions that filed a copy of the power of attorney, who are aware of the power of attorney’s existence, or who have dealt with the holder of the power of attorney as your agent.

 

Jason M. Gordon, Esquire

http://www.GAWillsOnline.com

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