Successor Attorney-in-Fact

/ April 11, 2013

One goal of estate planning is to plan for the unforeseen. To do this, in most estate planning documents, a successor is typically named for each primary role. That way, if the primary person(s) that have been nominated in a given role become unavailable or unwilling to act in the role assigned, the successor can be looked to.

Power of Attorney - iStockAs discussed frequently on Epilawg, having a Power of Attorney in place is an integral part of an estate plan. In a Power of Attorney, the principal of the document nominates a primary attorney-in-fact to handle and sign important documents on the principal’s behalf when the principal is unavailable to do so him or herself. As with other estate planning documents, a successor attorney-in-fact is nominated and named in the document to be available should the primary attorney-in-fact be unable to serve.

Most often, people ask what is needed to show that the primary attorney-in-fact is unable to serve and that, therefore, the successor attorney-in-fact can act as attorney-in-fact.

In Minnesota, if the attorney-in-fact is unable or unwilling to act as a result of the death, incompetency, or resignation, then an affidavit executed by the successor attorney-in-fact setting forth the conditions that led to the attorney-in-fact’s authority to act under the power of attorney and stating that those conditions have occurred is conclusive proof to any party relying on the affidavit of the occurrence of those conditions and that the successor attorney-in-fact is able to act on the behalf of the principal.

As always, be sure to consult with an estate planning attorney in your area for questions about Powers of Attorney and other estate planning documents.

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