This is an important question that comes up after the death of a loved one. Before we determine what happens to a power of attorney (POA) after death, we must establish exactly what a power of attorney is, how it works, and who can override the power of attorney.
Power of attorney for an elderly parent is usually established when the parent is making plans and setting up legal instruments authorizing someone to act as his representative or agent when necessary. The scope of the authority of the POA is clearly defined when the POA is established.
The person who designates the power of attorney is called the principal. The person designated to act on the principal’s behalf is called the agent. It is important to think carefully about who you choose to be your power of attorney. You can choose a trusted relative or friend, or you may even choose your attorney if there are no suitable candidates.
There are four main types of power of attorney:
- Limited power of attorney gives the agent the authority to act on your behalf for a very limited and time-sensitive purpose.
- General power of attorney is comprehensive and gives the agent all the rights and powers that you have yourself.
- Durable power of attorney can be limited or general, but it is mainly designed to be used if you become incapacitated and unable to make important decisions for yourself.
- Springing power of attorney allows your agent to act for you if you become incapacitated, but it does not become effective unless it has been legally established that you are incapacitated.
The principal can terminate or revoke the POA at any time if they are competent. Legal action is required for anyone other than the principal to override the POA. The person challenging the POA must have good reason to do so, such as evidence that the acting agent is grossly negligent or abusing the power that has been given to him.
So, when does the power of attorney end, and does power of attorney expire?
Power of attorney does not expire unless you die or make the stipulation to end it. For example, if you are having major surgery and you are concerned about your ability to handle your own affairs as you go through the surgery, rehabilitation, and recovery process. In such a case you can appoint someone to be your POA when you need them and rescind the POA once you have recovered. Durable power of attorney after death becomes useless.
What happens to power of attorney after death?
A power of attorney becomes null and void after the death of the principal. The person acting as the POA no longer has the authority to make decisions for the deceased or to manage any part of the estate.
The only person who can act on behalf of the estate following a death is the legal or court-appointed executor of the estate. This can be the same person who was the POA for the deceased, but the principal would have to establish that as a separate entity in the will. If a person dies without a will, the court will appoint an executor for the estate.
Well thought-out estate planning and creating a will that summarizes your wishes and specific desires upon your death is one of the most important things you can do for yourself and your loved ones.
If you do not have POA established and you become incapacitated, the court will appoint a conservator. If you die without a will, the court will appoint an executor and your wishes for the disbursement of your estate may not be carried out.
Take the time to protect yourself, your family, and your assets. We here at Griswold Home Care can answer your questions about estate planning. Click here for answers to some frequently asked questions.