attorney in fact: Power of Attorney Discussion

As stated elsewhere in this site, a Power of Attorney is an advance directive that, when properly executed, gives powers set forth in the document to another.

However, the powers conferred are limited to be those powers that do not run afoul of the agent's fiduciary duty.

Specifically, this can mean that under a general power of attorney form that is issued by your state, it may look like you have been given full, unfettered power to act for another; however, the obligations of your fiduciary duty as "attorney-in-fact" are to act in the best interests of the person giving of the power.

For example, if the power-of-attorney you are using is silent as to the power to gift to others or directly to the agent himself, your state is likely to have cases that have come through the courts that have found gifting by such a power-of-attorney document are a breach of fiduciary duty, voidable, and perhaps, illegal.

If you believe that you may want your agent to have the power to make gifts to himself or others (i.e. for estate planning purposes should you become incapacitated or very ill), the power-of-attorney will require custom language not available in your state's statutory form.

If you are interested in your state's power of attorney form, either with or without additional language providing your agent with the power to make gifts to others, including himself (or herself), click attorney in fact