What are the responsibilities of an attorney-in-fact?

In California, it is possible for an attorney-in-fact to act on an individual’s behalf pursuant to a durable power of attorney form. An attorney-in-fact is often relied upon to make health care decisions on behalf of the person who executed that form. The person designated as the attorney-in-fact can be any trusted adult such as a friend or an adult child.

The agent designated on a DPA is allowed to engage in any activities stipulated in the agreement whether an individual is competent to do so or not. This means that an agent may invest, buy property or make other financial decisions if so authorized in the document. The terms of the power of attorney become effective when it is signed, but an exception is made for a springing power of attorney which becomes effective at a predetermined date in the future.

The health care power of attorney is only effective when the grantor becomes not competent to make those decisions on his or her own. The authority given to the attorney-in-fact can be as broad or specific as the grantor wants it to be, and often includes the right to consent to or refuse treatment, the right to refuse life-sustaining efforts and the right to obtain access to medical records.

Giving another person a power of attorney over an individual’s affairs may make it easier to ensure that his or her best interests are protected at all times. Prior to creating or executing such a document, it may be a good idea to obtain the advice of an estate planning attorney.

Source: Caregiver, “Durable Powers of Attorney and Revocable Living Trusts“, September 10, 2014