An Attorney in fact has power over the principal’s assets and life. A principal will be wise therefore to select an Attorney in Fact who is absolutely trustworthy, or as trustworthy as is humanly possible. As a means of mitigating the rather substantial risks involved, some select blood relatives or the closest of friends.
Another way to reduce risk is to select joint attorneys in fact:
(1) “AND” Attorneys in fact. The principal appoints “A” and “B” as joint Attorneys in fact. The use of the conjunctive “AND” means that both A and B must approve any decision made on the Principal’s behalf; and
(2) “OR” Attorneys in fact. The principal appoints “C” or “D” as joint Attorneys in fact. Use of the disjunctive “OR” requires that only one – C or D – approves any given decision.
Best practices and contingency planning suggest that designating successor Attorneys in fact is prudent, in the event the first – or second – is unable or unwilling to serve.
Attorneys in fact are entitled by statute to compensation, pursuant to N.J. S.A. 46:2B-8.12. A principal will be wise to set forth the mechanism for calculating and paying this compensation in the POA itself. If no mechanism is stated, it will be up to the Courts, something proper drafting should preclude.