Picture this: A client has decided he needs to do you his estate planning. He has made his appointment with the attorney. The attorney has met with the client. And after about an hour-long meeting to understand the necessary estate planning documents, the client now has to make a decision concerning whom will serve as his power of attorney, i.e. Attorney-in-Fact. The decision to do estate planning is often easier than the decision to name a particular individual as Attorney-in-Fact. Here are some factors to consider in naming a “power of attorney”/Attorney-in-Fact:
1. How close will the power of attorney live to the client? The Attorney-in-Fact ideally would live relatively close to the client. The Attorney-in-Fact likely will be needed to sign checks for the client, run errands, go to doctor’s appointments, etc. Obviously, all those tasks are best completed with the client, rather than from a distance.
2. Do I have a good relationship with the prospective Attorney-in-Fact? The Attorney-in-Fact will be responsible for handling the client's financial affairs. Interestingly, the attorney in fact is expected to act on behalf of the principal as the principal would act prior to the principal’s incapacity. A client should be assured the Attorney-in-Fact knows the client well and will do for the client what the client would do for himself.
3. Does my attorney in fact have experience handling finances? We all have different talents. Some are well-suited to handle finances, while others are not quite as comfortable doing so. The client will want to select someone who will not be overwhelmed by the responsibility.
4. Does my Attorney-in-Fact have time to assist the client? Sometimes there's a person that is perfectly capable of handling the finances, but that person does not have time to devote to the task of serving as power of attorney. When a client becomes incapable of taking care of his/her finances, a lot of time will be required to take care of the client, especially at the outset of any incapacity.
When a married couple executes a power of attorney, they usually name each other as the first choice for Attorney in Fact. When it comes to naming a back-up Attorney in Fact (if the first choice is unable to serve), then there may be some disagreement on whom will be the best choice. The above are a few factors that might go into a client’s decision. Ultimately, the client, whether married or single, understands the people in their life much, much better than the attorney. After a good discussion about the responsibilities of the Attorney-in-Fact and a conversation about the people in the client’s life, then the client is in a better position to select the right person.