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Powers and Duties of an Attorney-in-Fact

Your attorney-in-fact only has the financial authority you grant him in the document creating a durable power of attorney for finances. Generally, an attorney-in-fact has broad authority to:

  1. use your assets to pay your everyday expenses and those of your family
  2. handle transactions with financial institutions
  3. buy, sell, maintain, and mortgage property
  4. file and pay your taxes
  5. manage your retirement accounts
  6. collect benefits from government programs or civil or military service

Beyond routine financial matters, you may want to authorize your attorney-in-fact to:

  1. invest your money in securities
  2. buy and sell insurance policies and annuities for you
  3. operate your small business
  4. claim or disclaim property you get from others
  5. represent you in court

An attorney-in-fact cannot:

  1. make healthcare decisions for you
  2. marry on your behalf
  3. adopt for you
  4. vote in public elections on your behalf
  5. make a will for you

The attorney-in-fact you appoint in your durable power of attorney is known as a “fiduciary,” which is someone who holds a position of trust and must act in your best interests. Thus, your attorney-in-fact is required to:

  1. be careful with your property by handling it honestly and prudently
  2. avoid conflicts of interest
  3. keep your property completely separate from her own
  4. keep adequate records for all transactions made on your behalf

An attorney-in-fact is not directly supervised by a court and, as such, is not required to file reports with any government agencies. However, a loved one who has doubts about the attorney-in-fact may ask a court to order the attorney-in-fact to take certain actions or ask a court to terminate the power of attorney-in-fact and appoint a conservator to supervise your affairs. If a conservator is appointed for you, the attorney-in-fact has to account to the conservator. Some states have statutes that set out specific procedures for such court actions.

Copyright 2012 LexisNexis, a division of Reed Elsevier Inc.

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