This is the second in a series of posts about the definition of “attorney.” See Part 1 in the series on this blog.
Power of attorney. The instrument by which authority of one person to act in place and stead of another as attorney in fact is set forth.
Many people use the term ‘power of attorney’ to describe the document that transfers power. Some use the term ‘power of attorney’ to describe the person (and that is not wrong as long as the meaning is clear), but the term is ‘attorney in fact.’ That term describes the person who accepts the grant of power.
The term ‘attorney in fact’ is often used to differentiate from the term ‘attorney at law.’
The above defintion is from Black’s Law Dictionary (Sixth Ed. West Publishing Co. 1990). I like to use that reference, because it is a hard-bound book. Sometimes I glimpse a related definition on the same page, and realize its relevance to my search. That is something we have lost in the digital environment.
You are not required to go to law school to act as an attorney in fact (that is, to exercise the power of attorney). You are not required to have a state law license or be admitted to any court.
Common uses are a son accepts power of attorney over his aging mother’s finances. Or perhaps someone has to leave the state for work and does not expect to return for years, and they grant power of attorney to a friend to sell their house. Each aspect of the control by the one who accepts the power (the attorney in fact), must be described in the power of attorney document. Those who accept the grant, are required to stay within the boundaries of the grant.
For example, if a mother gave her son authority to sell her house, but not to shut down her businesses, the son must be careful not to affect the businesses in the way he exercises the power.
The leaving friend would not want to learn, for example, that in addition to selling the house, the attorney in fact terminated the lease at the retirement center, a place where the leaving friend felt her father would be safe.
This is an important aspect of the law, one that affects many lives. Stay tuned for Part 3 of this series.
May 9, 2013. No derivative works are authorized by copyright holder(s).