Law Office of Frank M. Williams, L.L.C.

A Power of Attorney is a grant of legal rights and powers by a person, the "Principal," to another, the "Agent" or "Attorney-in-Fact."  The Attorney-in-Fact, in effect, stands in the shoes of the Principal and acts for him or her on financial and business matters.  The Attorney-in-Fact can do whatever the principal may so - withdraw funds from bank accounts, trade stock, pay bills, cash checks, open mail, handle tax matters, etc. - so long as the document provides that the Attorney-in-Fact may have such authority.  This does not mean that the Attorney-in-Fact can just take the principal's money and run.  The Attorney-in-Fact must use the Principal's finances as the Principal would for his or her benefit.

We commonly prepare Durable Power of Attorneys as part of our overall estate planning strategy with clients in preparing their Last Will and Testaments and Combined Advanced Directives for Health Care/Living Wills. 

If you would like for this firm to review your estate plan, please click this LINK to our client resources page for the estate planning questionnaire that best fits your situation.  We ask that you complete this questionnaire and bring it with you to your appointment.

If you are named as an Attorney-in-Fact under a Durable Power of Attorney, we would be more than glad to offer counsel to you in administering a Principal's affairs. 

Below are some of the more common questions client's ask us in preparing or administering Durable Power of Attorneys:

 What Does the Term "Durable" Mean?

• A "durable" Power of Attorney means that the authority remains in full-force and effect notwithstanding the incapacity of a principal.
• If a Power of Attorney is not "durable" and the Principal becomes incapacited, then the Power of Attorney is void as the Principal lacks the capacity to revoke the Power of Attorney.

When Does The Power of Attorney Take Effect? 

Unless the Power of Attorney is "springing," it takes effect as soon as it is signed by the Principal.  A "springing" power of attorney take effect only upon a certain condition described in the instrument itself.  Typically, this is the disability of the Principal as certified by one or more physicians.

Does The Power of Attorney Take Away A Principal's Rights?

No, absolutely not.  Only a Court take away a principal's rights in a conservatorship or guardianship proceeding. An Attorney-in-Fact simply has the power to act along with the principal.  (For a further discussion of conservators, please click HERE; for a further discussion of guardianships, please click HERE.)

 Can The Principal Change His Or Her Mind?

Certainly.  A Principal may revoke a Power of Attorney at anytime, so long as he or she is competent.  All a Principal needs to do is send a letter to his or her Attorney-in-Fact telling them that their appointment has been revoked.  From the moment the Attorney-in-Fact receives the letter, he or she can no long act under the Power of Attorney. 

• Note: If an Attorney-in-Fact's authority is revoked and no sucessor is named in the document itself, then the document is void.

 Can An Attorney-in-Fact Be Held Liable For His Or Her Actions?

Yes, but only if he or she acts with willful misconduct or gross negligence.

 What If There Is More Than One Attorney-in-Fact?

Depending on the wording of the Power of Attorney, you may or may not have to act on all transactions.  In most cases, when there are multiple attorney-in-fact, the document specifies that they can each act independently of one another.  If the document does not, all actions must be made jointly.  Regardless of if the document requires Attorneys-in-Fact to act independently or jointly, it is important for them to communicate with one another to make certain their actions are consistent. 

What Kind Of Records Should The Attorney-in-Fact Keep?

It is very impotant that the Attorney-in-Fact keep good records of his or her actions under the Power of Attorney.  Monthly reconciliation of financial records is vital to ensure that all transactions occured properly, and many clients keep a notebook or journal documenting their decisions should a question arise in the future.  Accurate records is the best way to be able to answer any quetsions anyone may raise in the future.  The most important rule to keep in mind is not to commingle the funds of an Attorney-in-Fact with his or her own money.  Simply, keep the accounts seperate.

How Does a Power of Attorney Terminate? 

 A Power of Attorney terminates upon the death of the Principal, or the revocation of the document.  Upon the termination of a Power of Attorney, the Attorney-in-Fact may be required to account for his or her actions to either the Principal (if alive), the successor Attorney-in-Fact (if a new Attorney-in-Fact is appointed), the Personal Representative of the Principal's Estate (if the Principal died), or a Court.

The Principal Has Just Died; Do I Have Authority As Attorney-in-Fact?

No. The authority an Attorney-in-Fact has under Power of Attorney ceases upon the death of the Principal.  

• Only a Funeral and Disposition Representative (if named in the Principal's Last Will and Testament) or next of kin (if no Funeral and Disposition Representaitve is name in the Principal's Last Will and Testament) has authority to act on behalf of the deceased Principal for purposes of funeral arrangements.   

• Until a Personal Representative (Executor/Administrator) is qualified before the Surrogate's Court and an Estate is opened, no person is authorized to access funds or assets in the name of a Decedent individually. For a further discussion of Estate Administration, please click the following LINK.