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Should your spouse be your attorney-in-fact?

On Behalf of | Oct 26, 2023 | Estate Administration & Probate

California residents include powers of attorney in their estate plans because they want to be sure that their financial affairs will be attended to if they become incapacitated by illness or injury. Before you draft a power of attorney, you should think carefully about who you will appoint to act as your attorney-in-fact. An attorney-in-fact should be trustworthy, reliable and willing to make important decisions, which is why most people choose to appoint their spouse or partner.

Appointing your spouse to be your attorney in fact

If you draft a power of attorney in California, you will have legal as well as practical reasons to appoint your spouse to be your attorney-in-fact. California is a community property state, which means spouses each own half of the marital estate. If you appoint someone other than your spouse to act as your attorney-in-fact they will be tasked with managing money and investments that are partly owned by your spouse. This could lead to conflict. If you draft a power of attorney that authorizes your spouse to act on your behalf and you later get divorced, their designation as your attorney-in-fact will be revoked.

Appointing someone other than your spouse

Spouses may not be able to perform the duties expected of an attorney-in-fact because of age, illness or unfamiliarity with business and financial matters. If you find yourself in this estate planning situation, you should appoint a responsible individual that your spouse knows and has confidence in. An older child or a trusted professional would both be good choices.

Peace of mind

If you want to know that your affairs will be tended to if you become incapacitated, you should draft a power of attorney and appoint an attorney-in-fact. Your attorney-in-fact will have the authority to pay your bills and manage your financial affairs, so you should choose somebody who is reliable and trustworthy. Appointing your spouse to act as your attorney-in-fact would meet these requirements, and it would also make legal sense.


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