So, you’ve been named as someone’s Attorney-in-fact (“Agent”)… now what? To make a long answer short- it depends.  

The first question any Agent must ask herself is whether the Power of Attorney document (“POA”) grants her the authority to act on the Principal’s behalf immediately (known as a durable power of attorney), or if the Power of Attorney only comes into effect upon a specific occurrence, such as when two doctors opine that the Principal is incapacitated. The latter document is known as a springing power of attorney.

Once this question is answered, the next question is: what powers are conferred under the document? The answer to this question rests in the language of the POA itself. Well-crafted Powers of Attorney contain numerous provisions that give a broad range of authority to the Agent, in the event the Principal can no longer make decisions for herself. Furthermore, a well-crafted POA contemplates future issues that may arise, and does not simply address immediate issues or circumstances that the Principal is facing. It is critically important that you read the document, so that you know what authority you actually possess, and at what point in time this authority is triggered.

Third, it is important to remain in contact with the Principal so that both Principal and Agent are working together to accomplish common goals. Communication is key, and the last thing an Agent wants to do is undermine the Principal’s wishes. If the Principal is no longer able to communicate her wishes due to incapacity, the Agent should act in the Principal’s best interest.  

Lastly, it’s important to know what duties you owe to the Principal as her Agent. Generally speaking, an Agent owes a Duty of Loyalty and a Duty of Care to the Principal. An Agent may also owe a Duty to Account to the Principal, but in the absence of an explicit accounting provision, it is still a good idea to keep accurate records for the Principal when carrying out your duties as an Agent.

Serving as someone’s Agent under a Power of Attorney is not a reward, nor is it a coveted position in a medium-large family. Serving as someone’s agent is a job, and as such, requires due care, the ability to handle a lot of responsibility, and the ability to communicate well with the Principal and third parties on the Principal’s behalf. When questions arise, it is important that the Agent is able to seek out professional guidance from attorneys, accountants and the like.

If you are an Agent under Power of Attorney and have questions concerning your authority, responsibilities or anything in between, the lawyers at Fink Rosner Ershow-Levenberg Marinaro Marinaro, LLC are ready to assist you. Call us today at (732) 382-6070 to set up a consultation.

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