In this video, you get answers to these questions:
- What Does Attorney at Law Mean?
- What Does Attorney-In-Fact Mean?
- Who Might Use An Attorney-In-Fact?
- How Does One Become an Attorney at Law?
- How Is an Attorney-In-Fact Appointed?
- Where Can You Find an Attorney-In-Fact?
- How Do I Choose My Attorney-in-Fact?
- What Is the Process of Becoming an Attorney-In-Fact?
- When Would Somebody Use an Attorney-In-Fact vs. Attorney at Law?
- How Would You Use an Attorney-In-Fact?
- Are the Court Procedures Different for an Attorney-In-Fact vs. an Attorney at Law?
- Can an Attorney-In-Fact Be Changed?
- Can an Attorney-In-Fact Resign?
- What Powers Does an Attorney-In-Fact Have?
- Can an Attorney-In-Fact Make Medical Decisions?
- Can an Attorney-In-Fact Delegate Any Granted Authority?
- Can an Attorney-In-Fact Sell Property?
- Can an Attorney-In-Fact Sign Deeds?
- Can an Attorney-In-Fact Make Decisions for the Principal?
- Is an Attorney-In-Fact the Same as Executor?
- What Happens If an Attorney-In-Fact Misuses Their Powers?
- What Happens If an Attorney at Law Misuses Their Powers?
- What Is the Ethical Code for an Attorney at Law vs. Attorney-In-Fact?
- Is an Attorney-In-Fact a Fiduciary?
- What Are the Responsibilities of an Attorney-In-Fact?
- Can an Attorney-In-Fact Act Outside of the State Where the Power of Attorney Was Granted?
- Can an Attorney at Law Practice in Any Area of Law?
- Can an Attorney at Law Represent Their Client in Any Court?
- What Is the Relationship Between an Attorney at Law and Their Client Like?
Table of Contents
What’s the difference between attorney at law and attorney-in-fact? Maybe you have heard these terms. They might be thrown around. Like for example, you might see me using the name, “Aaron Hall, Attorney at Law,” but you might see on some documents, “attorney-in-fact.” Perhaps, you have wondered what is the difference there. Does it mean the same thing? Is it a different type of attorney? That is a question I am going to answer today. I am Aaron Hall, an attorney for entrepreneurial companies and business owners. If you don’t yet have the free PDF that I provide on “Seven Common Legal Mistakes Made by New Businesses” and how to avoid them, you can go to aaronhall.com/free and get them, and you will get some free educational videos there as well.
What Does Attorney at Law Mean?
Attorney at law means a person is licensed by the jurisdiction to be an attorney or a lawyer and provide legal services to somebody.
What Does Attorney-In-Fact Mean?
Attorney-in-fact means a person has agreed to serve as power of attorney for another person. An attorney-in-fact is not necessarily a licensed attorney. Most of the time, an attorney-in-fact is not licensed to practice law. A person who is an attorney-in-fact is merely an authorized agent, able to sign documents for another person because of a power of attorney.
Who Might Use An Attorney-In-Fact?
Well, if you want somebody to be able to sign documents on your behalf, like, say, for example, somebody needs to show up in Florida and buy some real estate for you, but you are in Minnesota, you could sign and notarize a power of attorney. And then that person in Florida is your attorney-in-fact and then can sign documents on your behalf.
How Does One Become an Attorney at Law?
To become an attorney in the United States, you generally need to go to an ABA-approved law school. That is the American Bar Association. You then need to pass the bar exam in the state where you want to practice. You then get sworn in and receive a license to practice law.
How Is an Attorney-In-Fact Appointed?
When somebody fills out a power of attorney and signs it, and it is notarized, it says who is authorized to sign on their behalf. That person is thus appointed attorney-in-fact. That means an attorney-in-fact is a person who can sign on your behalf, and that appointment process is done through a power of attorney.
Where Can You Find an Attorney-In-Fact?
Well, if you need to have somebody working on your behalf and signing on your behalf, you could ask a friend or a family member. Or you could pay somebody to do that for you in another state, for example. You could pay an attorney at law, a licensed attorney, but an attorney-in-fact does not need to be a licensed attorney.
How Do I Choose My Attorney-in-Fact?
I would just pick somebody you trust because if you are authorizing somebody to sign papers on your behalf, you want to make sure that you trust them and they don’t sign you up for something that you will later regret because you are legally bound to the papers signed by your attorney-in-fact.
What Is the Process of Becoming an Attorney-In-Fact?
To become an attorney-in-fact, somebody else needs to sign a power of attorney that gives you the authority to sign on their behalf. That is it. A power of attorney creates an attorney-in-fact. The attorney-in-fact is the person who can sign on behalf of the person who notarized and signed the power of attorney.
When Would Somebody Use an Attorney-In-Fact vs. Attorney at Law?
An attorney-in-fact is only when you need somebody to sign on your behalf. An attorney at law is when you need legal advice or somebody to represent you in a court system.
How Would You Use an Attorney-In-Fact?
Any time somebody is going to need someone to sign on their behalf, they will need to use a power of attorney, and a power of attorney creates an attorney-in-fact. The attorney-in-fact is the person who can sign on behalf of the person who is unable to sign.
Are the Court Procedures Different for an Attorney-In-Fact vs. an Attorney at Law?
Yes. Usually, an attorney at law is the proper party to represent someone in court. An attorney-in-fact usually cannot represent someone else in court. So if you can’t show up for court on your own, you usually cannot just have a power of attorney to create an attorney-in-fact. You need to have a licensed attorney, otherwise known as an attorney at law.
Can an Attorney-In-Fact Be Changed?
Yes, you can change who you have authorized to sign on your behalf under a power of attorney at any time by changing the power of attorney or entering a new one.
Can an Attorney-In-Fact Resign?
Yes. If somebody doesn’t want to serve on your behalf under a power of attorney, that person called, attorney-in-fact, can resign.
What Powers Does an Attorney-In-Fact Have?
An attorney- in-fact can have whatever powers are assigned to that person in the power of attorney.
Can an Attorney-In-Fact Make Medical Decisions?
Yes, if that power was authorized in the power of attorney or healthcare directive. But the attorney-in-fact is limited to whatever authority is authorized in the power of attorney or healthcare directive.
Can an Attorney-In-Fact Delegate Any Granted Authority?
An attorney-in-fact usually cannot delegate authority. I suppose a power of attorney could allow for that delegation, but that would be highly unusual.
Can an Attorney-In-Fact Sell Property?
Yes. A power of attorney can authorize someone to buy or sell property on their behalf. But in many states, the power of attorney needs to expressly state that the power of attorney includes buying or selling real property.
Can an Attorney-In-Fact Sign Deeds?
Yes, as long as the power of attorney allows that person to sign deeds. A power of attorney will state what authority a person has, and many states require that the power of attorney actually say that the person can sign a deed or enter into real estate transactions before it actually includes real estate transactions. So if you want somebody to be able to buy or sell real estate for you, have a power of attorney specifically state that. And I would recommend having that drafted by a licensed attorney.
Can an Attorney-In-Fact Make Decisions for the Principal?
Can an attorney-in-fact make decisions for the principal or for you if you are the one that signed the power of attorney? Yes, that’s exactly what a power of attorney does. It authorizes another person to make decisions on your behalf and to bind you in contracts or transactions.
Is an Attorney-In-Fact the Same as an Executor?
No. An executor is somebody appointed by a court to oversee an estate; that is a person after there has been a death. A power of attorney only applies prior to a death. So a person can be appointed under a power of attorney to be an attorney-in-fact. But that only lasts until the person dies. After death is when the executor’s role kicks in.
What Happens If an Attorney-In-Fact Misuses Their Powers?
You may be able to sue that person for an abuse of power or breach of fiduciary duty. But you are generally stuck with whatever they did on your behalf, but you might be able to sue them for acting against your interests.
What Happens If an Attorney at Law Misuses Their Powers?
Well, you can sue them or you can report them to the state authority that oversees the licensing of attorneys.
What Is the Ethical Code for an Attorney at Law vs. Attorney-In-Fact?
Well, an attorney at law is subject to regulations and ethical rules that are promulgated by the State Supreme Court, whereas attorney-in-fact is not a licensed attorney and thus is not subject to those rules. The primary rule or law applied for attorneys-in-fact is that they must be operating in the best interest of the principal. That is the person who signed the power of attorney and whose behalf they are serving.
Is an Attorney-In-Fact a Fiduciary?
Yes. An attorney-in-fact has fiduciary duties of loyalty to the principal who signed the power of attorney and gave them the authority to act on their behalf.
What Are the Responsibilities of an Attorney-In-Fact?
An attorney-in-fact is responsible to do whatever is stated in the power of attorney. And specifically to act in the best interest of the person who signed the power of attorney and authorized the attorney to sign on their behalf.
Can an Attorney-In-Fact Act Outside of the State Where the Power of Attorney Was Granted?
It depends. There isn’t an easy answer to this. It is going to very much depend on what is accepted by the other parties in a transaction, and what that state’s law is. Often it is the case that a power of attorney gives authority in any state or any country. But whether the state or country or other parties in a transaction will honor and respect that authority, very much depends on the circumstances.
Can an Attorney at Law Practice in Any Area of Law?
In general, an attorney at law, so a licensed attorney, can practice in any area as long as they have competency in that area, and as long as they are in the geographic jurisdiction of their license. So, for example, if they are licensed in Iowa, the attorney needs to be practicing law in a way that relates to Iowa. Maybe it is a transaction with an Iowan company, an Iowan consumer, or an Iowan statute. But that gives you an idea that you need to stay within your competency. You need to operate within the rules of your jurisdiction. And then there are some exceptions. Patent law, for example, has a separate process of getting licensed as a patent attorney and admitted to the patent bar. So most attorneys who have a general license are not permitted to draft patents that would require an additional license. But for the most part, an attorney can practice in any area of law.
Can an Attorney at Law Represent Their Client in Any Court?
Now, let me give you an example. I am a business attorney. Am I legally allowed to practice in family law? Yes. Do I? Rarely, and only when it relates to business issues. Am I legally allowed to practice in a personal injury law and sue an insurance company for liability in an automobile accident? Yes, my license permits that, but do I do that? No, that is outside of my wheelhouse. It is outside of my experience in competency. So it is important that people hiring attorneys look for an attorney who has experience and a focus in a particular area and not just be authorized under the license to practice in that area.
What Is the Relationship Between an Attorney at Law and Their Client Like?
Well, an attorney at law has all sorts of legal duties to operate in the client’s best interest: to communicate with the client, to keep them apprised of events, to act in a diligent manner, a competent manner, to avoid conflicts of interest, to preserve attorney-client privilege. There are all sorts of duties placed on a licensed attorney at law. That is very different from an attorney-in-fact who is not a licensed attorney and is merely representing a person’s interest as far as signing documents or some small task or transaction. There is a lot more responsibility put on attorneys at law. A lot more laws and regulations and safeguards are put in place to protect clients so that hopefully that relationship will be a better relationship and a more trusted relationship than you might find with an attorney-in-fact relationship with somebody you don’t know.
I am Aaron Hall, an attorney representing business owners and entrepreneurial companies. If you found this helpful, you are welcome to subscribe to this channel. If you want more educational videos like this, you can thumbs up if it is helpful or thumbs down if it wasn’t.
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