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April 23, 2012 by Rebecca Esmi

The Attorney in Fact as a Fiduciary

A fiduciary has very big shoes to fill.  A fiduciary must put the principal first.  In other words, the Attorney in fact must put the principal before him- or herself at all times, despite any temptation or self-interest.   The Attorney in fact must while acting as fiduciary ensure that actions undertaken are authorized by the POA.   See N.J.S.A. 46:2B-8.13(a).

An Accounting is a report of financial transactions.  An Attorney in fact is required to provide an Accounting upon demand, pursuant to N.J.S.A. 46:2B-8.13(b).   Thus, each Attorney in fact is required to maintain a record of all the various and sundry transactions undertaken on the principal’s behalf, pursuant to N.J.S.A. 46:2B-8.13(b).   An Attorney in fact would be well-advised to retain the record many years since questions could arise years later.    A whole cast of characters can demand an Accounting; to name several of the most common:   The Principal, guardian of the principal (if the principal is adjudicated incapacitated), personal representative, beneficiaries, and heirs of the principal’s estate.

Filed Under: Disabilities and Elder Law, Estate Planning and Estate Administration, Family Law Tagged With: accounting, attorney in fact, fiduciary, poa, power of attorney, years later

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Lori M. McNeely
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