Power of Attorney or Attorney in Fact???

[phenry]

Hello,

I've been a lurker on this forum for quite some time and have found it to be very valuable. I searched to see if this question had been asked and answered previously, but I did not find anything.

When someone retains an lawyer to represent them in a divorce/custody case, do they usually grant the lawyer "power of attorney" for the duration of the case? In other words, does the employment contract with the lawyer usually include a provision that grants power of attorney (or designate the lawyer as "attorney in fact")? If it is not typical, is there a legitimate reason that a person would agree to this?

Any insight would be extremely helpful.

Patrick

 

[army judge]

I'm not sure where you're headed with your question.

This might help:

attorney-in-fact n. someone specifically named by another through a written "power of attorney" to act for that person in the conduct of the appointer's business. In a "general power of attorney" the attorney-in-fact can conduct all business or sign any document, and in a "special power of attorney" he/she can only sign documents or act in relation to special identified matters. Too often people sign themselves as attorney-in-fact for relatives or associates without any power of attorney. If someone claims to be able to sign for another, a demand to see the written power of attorney is reasonable and necessary. In real estate matters the power of attorney must be formally acknowledged before a notary public so that it can be recorded along with the real estate deed, deed of trust, mortgage, or other document.


http://legal-dictionary.thefreedictionary.com/attorney-in-fact

A power of attorney is a document that allows you to appoint a person or organization to handle your affairs while you're unavailable or unable to do so. The person or organization you appoint is referred to as an "Attorney-in-Fact" or "Agent."

General Power of Attorney - authorizes your Agent to act on your behalf in a variety of different situations.

Special Power of Attorney - authorizes your Agent to act on your behalf in specific situations only.

Health Care Power of Attorney - allows you to appoint someone to make health care decisions for you if you're incapacitated.

"Durable" Power of Attorney -The general, special and health care powers of attorney can all be made "durable" by adding certain text to the document. This means that the document will remain in effect or take effect if you become mentally incompetent.

Revocation of Power of Attorney - allows you to revoke a power of attorney document.

General Power of Attorney
A general power of attorney is very broad and provides extensive powers to the person or organization you appoint as your agent. These powers usually include:

Handling banking transactions
Entering safety deposit boxes
Handling transactions involving U.S. securities
Buying and selling property
Purchasing life insurance
Settling claims
Entering into contracts
Exercising stock rights
Buying, managing or selling real estate
Filing tax returns
Handling matters related to government benefits
You also have the option to grant the following additional powers to your Agent:

Maintaining and operating business interests
Employing professional assistance
Making gifts
Making transfers to revocable ("living") trusts
Disclaiming interests (this has to do with estate planning strategies to avoid estate taxes)
A general power of attorney is usually used to allow your agent to handle all of your affairs during a period of time when you are unable to do so. For example, when you are traveling out of the state or country or when you are physically or mentally unable to handle your affairs. A general power of attorney is frequently included as part of an estate plan to make sure that you have covered the possibility that you might need someone to handle your financial affairs if you are unable to do so.

For all sorts of Power of Attorneys for Your Specific State and Circumstance check out:

Special Power of Attorney
A special power of attorney allows you to give only specific powers to the person or organization you appoint as your "Agent." For example, you could authorize someone to sell a car or a house for you.

Many people use the special power of attorney to authorize their Agent to do one or several of the following:

Handle banking transactions
Enter safety deposit boxes
Handle transactions involving U.S. securities
Collect debts
Sell real estate
Mortgage real estate
Manage real estate
Sell personal property
Borrow money
Manage business interests
Handle government issues
Make financial decisions
Make estate planning decisions, including gifts



http://www.lectlaw.com/filesh/qfl04.htm

 

[phenry]

So if a contract to retain an attorney to represent me in my divorce contained the following, it would not be unusual?

5. POWER OF ATTORNEY

I appoint the Attorney as my lawful Attorney-in-fact with full power and authority to do all things in connection with the handling of my case, including, but not limited to, the power and authority to execute pleadings and other instruments in connection with my case, the power to approve settlement agreements, orders or judgments, whether temporary or final, and all other documents I could properly execute personally. I understand that Attorney will not approve any settlement agreement without obtaining my prior approval.

 

[army judge]

So if a contract to retain an attorney to represent me in my divorce contained the following, it would not be unusual?

All in all, rather flowery and superfluous.

It seems innocuous in that he can't do anything unless he
gets your approval.

I think he wants the ability to negotiate in good faith on your behalf.


You, however, retain the right to override or over rule any agreement he makes on your behalf.

But, just to fair, why not ask YOUR attorney why the clause is contained within your retainer agreement?

If you take issue with someone, it never hurts to speak with them about the issue.