Whether you are an attorney-in-fact, a principal or a concerned party, understanding the scope and limits of an attorney-in-fact’s authority is essential to ensuring a power of attorney is used in the principal’s best interests.
A power of attorney (POA) is an important legal tool in estate planning. It allows a person to designate someone they trust to make important decisions on their behalf if they lose the mental capacity to do so themselves.
Imagine an elderly individual who falls into a coma after a car accident. Long before losing mental capacity, they had executed both financial and medical powers of attorney. Because they took this precaution, the financial attorney-in-fact can manage their financial affairs (including paying insurance premiums to prevent policy lapses during this critical time), while the medical attorney-in-fact can make essential healthcare decisions (including consenting to medical procedures the principal urgently needs).
It is easy to understand why many people choose to include powers of attorney in their estate plans. In some situations, these documents can make an extraordinary difference, especially when emergencies arise or incapacity occurs suddenly.
That said, the effectiveness of a POA — and whether it fulfills the purpose for which it was created — largely depends on how the attorney-in-fact exercises their authority.
Attorneys-in-fact who stay within the limits of their authority and act solely in the principal’s best interests can provide immense support and reassurance during difficult times. By contrast, those who misuse their authority may create unnecessary stress, financial hardship and conflict for everyone involved — while also exposing themselves to potential legal liability.
What Does Attorney-in-Fact Mean?
The term “attorney-in-fact” refers to the individual designated in a power of attorney to act on behalf of another person, known as the principal, in certain financial, legal or medical matters. Attorneys-in-fact are also sometimes referred to as “agents.”
Is an Attorney-in-Fact the Same as Power of Attorney?
An attorney-in-fact and a power of attorney are not technically the same — although the terms are closely related and sometimes used interchangeably.
For example, when people want to learn about the authority granted to an attorney-in-fact, they often ask:
“What can a power of attorney do?”
This phrasing is accurate if the question refers to the power of attorney document itself and the authority it grants. However, if the goal is to understand the powers and limitations of the person acting under that document, the more precise question would be:
“What can an attorney-in-fact do?”
In short, a power of attorney is the term for the document that grants an attorney-in-fact authority, while an attorney-in-fact is the term for the individual or organization to whom authority is granted.
Who Can Act as Attorney-in-Fact in California?
In California, any individual who is at least 18 years old possesses the necessary mental capacity and is able to act in the principal’s best interests may serve as an attorney-in-fact.
In the context of powers of attorney, the relevant standard of capacity is often referred to as the capacity to contract. In simple terms, this means the individual understands the nature and consequences of entering into the arrangement.
That said, while these are the basic legal qualifications for serving as an agent under a POA, there are several practical considerations to keep in mind when selecting an attorney-in-fact.
For example, you may wish to consider:
- The location of the agent: Certain responsibilities may require proximity to the principal or to the financial or medical institutions involved.
- The complexity of the tasks or decisions: More complicated financial, legal or medical matters may be better handled by someone with relevant expertise or experience.
- The agent’s own financial management: Someone who struggles to manage their own finances may not be well-suited to handle another person’s financial affairs. Individuals who are financially stable may also be less likely to engage in misconduct.
- The agent’s criminal background: Individuals with criminal histories — particularly those involving financial crimes such as fraud — may face increased scrutiny from financial or medical institutions that rely on the POA.
- Whether to appoint multiple agents: Naming more than one agent can create additional oversight and accountability, but disagreements between co-agents may delay decision-making.
Does an Attorney-in-Fact Have to Be an Attorney?
There is no requirement that an attorney-in-fact be an attorney. An attorney-in-fact may be any individual who is at least 18 years old, possesses the necessary mental capacity and is capable of fulfilling the fiduciary duties associated with the role.
It is understandable that the terms “attorney-in-fact” and “attorney-at-law” are sometimes confused. However, the two roles are distinct, and using the correct terminology is important to avoid confusion — especially because both roles may sometimes be involved in matters related to a power of attorney.
For example, an attorney-in-fact may hire an attorney-at-law to assist with financial or legal matters or to defend against allegations of POA misuse.
In some cases, the attorney-in-fact may also be an attorney-at-law in their professional life. This legal background may help them carry out their responsibilities more effectively. However, potential conflicts of interest can arise when the attorney-in-fact is also the principal’s attorney.
In such situations, the individual does not necessarily need to decline the appointment. However, they must remain mindful of their fiduciary obligations and ensure that their personal or professional interests never conflict with — or take precedence over — the interests of the principal.
What Does Power of Attorney Allow You to Do?
A power of attorney allows an attorney-in-fact to make certain decisions regarding finances, legal matters or medical care on a principal’s behalf. If this definition seems somewhat broad, it is because a power of attorney can serve a wide range of purposes that cannot easily be summarized in a single sentence.
For example, a POA might grant a business partner the authority to sign a single contract on your behalf. It could just as easily allow a family member to access your bank account to pay your bills or review your personal records to help manage your medical care.
Because powers of attorney are highly customizable, the authority they grant can vary significantly. Some POAs provide broader powers than those typically granted, while others limit the agent’s authority to very specific actions or transactions.
For this reason, it is important for attorneys-in-fact to carefully review the terms of the POA under which they are acting — and to seek legal guidance if they have difficulty interpreting its scope.
The two most common types of powers of attorney people encounter are financial (general) powers of attorney and medical powers of attorney.
Common responsibilities of an attorney-in-fact under a financial power of attorney may include:
- Managing bank and retirement accounts, including paying bills and depositing checks
- Managing real property, including arranging maintenance and paying property taxes
- Handling business matters, including signing contracts
- Preparing and filing taxes, and addressing issues with the IRS
- Initiating or defending legal actions on the principal’s behalf when appropriate
- Using the principal’s funds to pay for medical care and other necessary expenses
- Prudently investing the principal’s assets, including in stocks, bonds or other opportunities
Health care agents are often responsible for making medical decisions on the principal’s behalf when the principal is unable to communicate those decisions themselves.
Common responsibilities of an attorney-in-fact under a medical power of attorney may include:
- Making health care decisions when the principal cannot do so
- Coordinating medications, healthcare providers and medical facilities
- Providing or withholding consent for medical treatment
- Accessing the principal’s medical records
- Ensuring medical care aligns with the principal’s wishes and goals
- Consenting to or declining life-sustaining treatment, such as feeding tubes or ventilators
The following chart addresses questions attorneys frequently receive about actions an attorney-in-fact is authorized to take — and those they generally are not permitted to perform.
What Can a Power of Attorney Do — And What Can’t They Do? | ||
Power | Does the Agent Have Authority? | Explanation |
Can an attorney-in-fact sign for the principal? | ✓ | If a principal becomes incapacitated, they may no longer be able to sign legal documents themselves. In such cases, the attorney-in-fact can sign documents on the principal’s behalf. When doing so, the attorney-in-fact should clearly indicate that they are signing in a representative capacity. The signature typically includes the principal’s name, the agent’s signature, and the agent’s title, “attorney-in-fact.” |
Can an attorney-in-fact manage property? | ✓ | It is important for attorneys-in-fact to understand the difference between managing property and disposing of it. Managing property may include tasks such as paying property taxes, arranging maintenance or funding repairs and improvements. While most financial attorneys-in-fact have authority to manage a principal’s property, they must be granted authority to dispose of it. In other words, they would need express authority to sell or otherwise transfer ownership of the property. |
Can an attorney-in-fact sign loan documents? | ✓ | Attorneys-in-fact acting under a POA that specifically grants authority over financial or legal transactions may generally sign loan documents on the principal’s behalf. However, doing so must serve the principal’s best interests, and the transaction must comply with any applicable requirements of lenders, institutions or relevant third parties. |
Can an attorney-in-fact override a conservator? | ✗ | A conservatorship may be established even when a power of attorney exists. This typically occurs if the POA fails to adequately address the principal’s needs or if the attorney-in-fact is acting improperly. When a conservatorship is created, the court may suspend or revoke the existing power of attorney. |
Can an attorney-in-fact keep family away? | ✗ | An attorney-in-fact generally may not arbitrarily prevent family members from visiting the principal. In many situations, restricting access without justification can raise concerns about potential misconduct. That said, if an attorney-in-fact acting under a medical POA reasonably believes that family visits may harm the principal’s health or wellbeing, some restrictions may be appropriate. Even then, such measures are typically considered a last resort. |
Can an attorney-in-fact revoke a power of attorney? | ✗ | An attorney-in-fact cannot revoke a power of attorney. However, they may decline the appointment or resign from their role as agent. A principal may revoke a POA at any time, provided they still have the necessary mental capacity. If the principal lacks capacity, a concerned party may petition the court to invalidate the POA, but valid legal grounds must exist for the court to do so. |
Can an attorney-in-fact change power of attorney? | ✗ | Only the principal — provided they have the required mental capacity — may modify or amend a power of attorney. |
Can an attorney-in-fact create, amend or revoke a will? | ✗ | Only a principal with testamentary capacity may create, amend or revoke a will. |
Can an attorney-in-fact transfer money to themselves? | ✗ | Self-dealing is generally prohibited under a power of attorney. An attorney-in-fact may only transfer money or assets to themselves if the POA expressly authorizes compensation or self-gifting. Even when such authority exists, the agent should maintain detailed records of all transactions conducted under the POA. |
Can an attorney-in-fact close a bank account? | ✗ | Closing a principal’s bank account after their death is typically the responsibility of the personal representative of the estate, not the attorney-in-fact. However, while the principal is still alive, an attorney-in-fact with financial authority under the POA may have the power to close a bank account if doing so serves the principal’s best interests and falls within the scope of the authority granted. |
Can an attorney-in-fact withdraw money after death? | ✗ | All powers of attorney end upon the principal’s death. If an attorney-in-fact withdraws money from the principal’s bank account after learning of their death, they may face legal consequences for misusing the POA. Funds withdrawn by an agent who was unaware of the principal’s death may need to be returned, but the agent generally will not face personal liability if the action was taken in good faith. |
Can an attorney-in-fact delegate authority? | ✗ | An attorney-in-fact may hire third-party professionals — such as accountants, financial advisers or attorneys — to assist with their duties. However, they cannot completely delegate their responsibilities to someone else. Ultimate accountability remains with the attorney-in-fact. |
Can an attorney-in-fact give legal advice? | ✗ | An attorney-in-fact may provide legal advice only if they are a licensed attorney. Despite what their title might suggest, an attorney-in-fact cannot practice law, draft legal documents or provide legal counsel unless they are properly licensed. That said, seeking guidance from an attorney can be valuable when navigating complex financial, medical or legal decisions. |
Can an attorney-in-fact appoint another attorney-in-fact? | ✗ | An attorney-in-fact may decline the appointment or resign from their role, but they typically cannot appoint their own replacement. In most cases, if the named agent is unable to serve, a successor agent listed in the POA has priority to act. If no successor is named, or the successor declines, the court may appoint a conservator to manage the principal’s affairs. |
Can an attorney-in-fact cash a check after death? | ✗ | An attorney-in-fact may not take any actions using a POA after the principal’s death, including cashing checks. If a check arrives after the principal’s death, it should be immediately turned over to the personal representative of the estate. |
Can an attorney-in-fact make gifts? | Express authority required | An attorney-in-fact may make gifts only if the POA explicitly grants that power and the gift aligns with the principal’s best interests or objectives. |
Can an attorney-in-fact change beneficiary designations? | Express authority required | An attorney-in-fact may alter beneficiary designations — such as beneficiaries on bank accounts and life insurance policies — only if expressly authorized to do so in the terms of the POA. The alterations must also be in the best interests of the principal and align with their goals. |
Can an attorney-in-fact create, amend or revoke a trust? | Express authority required | An attorney-in-fact may transfer assets into a trust, and in very narrow circumstances, may be able to amend the trust or revoke it — provided the POA grants express authority. That said, they cannot create, amend or revoke a trust after the principal’s death, since a POA automatically expires at that time. |
Can an attorney-in-fact change ownership of property? | Express authority required | Attorneys-in-fact who intend to gift, transfer or sell property — actions that change ownership — must have express authority in the POA for those actions to be valid. Generally, attorneys-in-fact with financial or legal powers have authority to manage property, but selling or transferring ownership requires explicit authorization. |
What Should I Do if an Attorney-in-Fact Abuses Their Authority?
It is crucial to act quickly if you suspect an attorney-in-fact is abusing their power. You do not always need definitive proof of misconduct to take action; a lawyer can help investigate and gather the evidence necessary to support your case.
Power of attorney abuse can take many forms but most commonly includes misappropriating assets, mismanaging funds, self-dealing or taking actions beyond the authority granted in the POA.
Who can take legal action depends on the principal’s mental capacity:
- If the principal has capacity: They may revoke the POA, recover assets, pursue damages and hold the attorney-in-fact legally accountable.
- If the principal lacks capacity: An interested party must petition the court to revoke the POA, recover assets and seek any additional damages or penalties.
Below are key steps to take if you suspect POA abuse.
1. Preserve Evidence
Secure and make copies of all relevant documents, such as financial statements, receipts and accountings.
Attorneys-in-fact are legally required to maintain detailed records of all transactions they make on behalf of the principal. If misconduct is suspected, agents may attempt to hide or alter records, making it critical to preserve all evidence before filing any claims.
2. Request Records from the Attorney-in-Fact
Formally request any records not already provided. Always make requests in writing to document your attempts, which can be important if the agent refuses to comply.
Having complete records is essential to fully understand any alleged misconduct. If the agent refuses to provide records, a lawyer may need to intervene to compel compliance or petition the court.
Note: A failure by the attorney-in-fact to maintain detailed records can itself indicate potential wrongdoing.
3. Consult a Power of Attorney Lawyer
Bring your evidence and concerns to a lawyer experienced in POA disputes. They can evaluate the strength of your case and investigate further if appropriate.
A skilled power of attorney lawyer knows the red flags of abuse and how to present them effectively in court.
4. Develop a Legal Strategy
Once your lawyer determines the case is viable, they will help you define your legal goals and strategy.
Key steps include:
- Assessing the approximate value of harm caused by the attorney-in-fact.
- Identifying specific abusive acts allegedly committed.
- Determining the legal remedies needed to make the principal — or their estate — whole.
5. File a Petition with the Court
Your claims and requested remedies must be clearly outlined in a petition filed with the court. It is generally best to have your lawyer handle this step to ensure compliance and maximize the petition’s effectiveness.
A well-prepared petition can expose weaknesses in the opposing party’s defense, potentially prompting a favorable settlement.
6. Resolve the Case
POA abuse cases typically resolve either at trial or through an out-of-court settlement. Whenever possible, settlement is preferred because it usually reduces legal costs, stress and delays.
- Trial: If successful, you may be able to recover attorney’s fees and other costs from the opposing party, though this is not guaranteed.
- Settlement: Allows more control over terms and requires fewer resources. Compensation for legal costs may still be possible if agreed upon by both parties. Most POA abuse cases resolve through settlement.
How Does the Role of an Attorney-in-Fact Compare to Similar Legal Roles?
While attorneys-in-fact may sound similar to other fiduciary roles, their authority and responsibilities are distinct. Below is a comparison of the attorney-in-fact role with other common fiduciary roles.
Roles | How Do the Roles Differ? |
POA Agent vs. Conservator |
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POA Agent vs. Personal Representative
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POA Agent vs. Trustee |
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Attorney-in-Fact FAQs
Still confused about the role of an attorney-in-fact? Explore the frequently asked questions below for additional guidance.
Who is the agent in a power of attorney?
The agent in a power of attorney is the attorney-in-fact. “Agent” is the more commonly used term for someone granted authority under a POA.
What is a successor attorney-in-fact?
A successor attorney-in-fact is the individual named in a POA to step in if the original agent declines the appointment, resigns or is otherwise unable to serve (e.g., due to death or illness).
If no successor is named and the principal becomes incapacitated, a court may need to establish a conservatorship to manage the principal’s affairs.
Successor agents must be named before the principal loses capacity. They cannot be added afterward.
Can you have two agents in a power of attorney?
Yes. A POA can name multiple agents, which is common when several family members want input on financial, legal or medical decisions.
While multiple agents can help prevent misuse, requiring them to act jointly may slow decision-making or lead to disagreements. Consider relationships carefully before naming co-agents to ensure cooperation during critical times.
What is a co-agent in a power of attorney?
A co-agent is an individual who shares authority with another attorney-in-fact under a POA. Co-agents generally have either joint authority or concurrent authority.
- Joint authority: Co-agents must agree unanimously before any action is taken.
- Concurrent authority: Co-agents may act independently within their granted powers.
Always review the POA to understand the specific authority and limitations of each co-agent.
How does an attorney-in-fact sign a document in California?
An attorney-in-fact must sign documents by including the principal’s name, their own name and their title.
For example:
“Charlotte Smith by Angela Johnson, Attorney-in-Fact”
This format ensures the principal is legally bound, not the agent personally.
Can a personal representative appoint an attorney-in-fact?
No. A personal representative’s authority begins after a principal’s death, while an attorney-in-fact’s authority ends at death.
However, personal representatives can pursue POA abuse claims to recover assets for the estate if misconduct is discovered.
Can a trustee appoint an attorney-in-fact?
No. Trustees manage trust assets only and cannot appoint an attorney-in-fact unless the trust expressly allows it.
Is an attorney-in-fact a lawyer?
An attorney-in-fact may be a lawyer, but it is not required. The only requirements are that the individual be an adult with mental capacity who is able to act in the principal’s best interests.
Do I need to fill out a form to act as attorney-in-fact?
Yes. Agents must complete the Agent’s Certification as to the Validity of Power of Attorney and Agent’s Authority — which must be notarized and signed under penalty of perjury.
This form acknowledges fiduciary duties and may be required by banks or medical institutions to verify your authority.
What does attorney-in-fact mean in a contract?
“Attorney-in-fact” indicates that an agent signed the contract on behalf of a principal who could not sign.
The contract remains binding for the principal; the agent merely executes it under their authority.
What is an affidavit of an attorney-in-fact?
An affidavit of an attorney-in-fact is another term for the Agent’s Certification mentioned above. It formally acknowledges that the POA is valid and the agent understands their duties.
Is a power of attorney valid after the death of an agent?
A POA may remain valid after the death of an agent if a successor or co-agent is named. Authority then transfers to the new agent or remaining co-agents.
If no co-agent or successor agent is designated, the power of attorney may terminate upon the agent’s death. In that event, a principal who still has capacity may execute a new POA; if the principal lacks capacity, a conservatorship may need to be sought.
Does the agent have to sign the power of attorney?
No. Only the principal must sign a POA, either before a notary public or in the presence of two witnesses.
The agent, however, must sign an affidavit acknowledging their fiduciary obligations.
Notarizing the POA is generally recommended to prevent disputes.
Still confused about an attorney-in-fact’s role?
Understanding an attorney-in-fact’s responsibilities is essential to ensure a POA serves its intended purpose. At Keystone Law, our probate attorneys regularly advise agents, principals and families on navigating POA duties, identifying potential misuse and addressing misconduct.
Whether you are serving as an attorney-in-fact or have concerns about one, our experienced team can guide you. Call Keystone Law today to learn more.
