Do You Still Have Power of Attorney if Someone Dies?

By Victoria McGrath

Powers of attorney do not survive death. After death, the executor of the estate handles all financial and legal matters, according to the provisions of the will. An individual can designate power of attorney to his attorney, family member or friend and also name that same person as executor of the estate. When an individual assigns power of attorney to an agent, that agent represents him in life. When the individual names an executor of his estate in his will, that agent represents him in death. A durable power of attorney with broad authority and specific prohibitions helps protect the individual's estate during his lifetime.

Powers of attorney do not survive death. After death, the executor of the estate handles all financial and legal matters, according to the provisions of the will. An individual can designate power of attorney to his attorney, family member or friend and also name that same person as executor of the estate. When an individual assigns power of attorney to an agent, that agent represents him in life. When the individual names an executor of his estate in his will, that agent represents him in death. A durable power of attorney with broad authority and specific prohibitions helps protect the individual's estate during his lifetime.

Broad vs. Limited Power

A power of attorney creates a principal-agent relationship. An individual assigns power of attorney to a trusted individual, to serve as his agent in financial transactions. The principal designates broad powers of attorney or limited powers of attorney. Broad powers of attorney can encompass unlimited legal and financial transactions. Limited powers of attorney restrict the agent's authority. For example, the limited authority might only include the power to pay bills, manage property or file taxes. Power of attorney generally applies to personal financial transactions. Different laws govern appointment of health care agents under advanced directives, beyond financial power of attorney designations.

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Durable vs. Non-Durable

Two types of power of attorney include durable power of attorney and non-durable power of attorney. A non-durable power of attorney extinguishes when the principal becomes incapacitated and can no longer handle his own affairs. A durable power of attorney lasts beyond the principal being incapacitated. It expires when the principal dies. A durable power of attorney enables the agent to act on the principal's behalf during his temporary or permanent incapacity. The durable power of attorney does not give the agent authority to make critical health care decisions, regarding life or death.

Standing vs. Springing

A power of attorney can be either standing or springing. A standing power of attorney takes effect immediately, once the principal designates his agent and assigns him broad or limited authority. A springing power of attorney does not "spring" into effect until a specific event occurs. For example, the springing power of attorney may come into effect when the principal becomes incapacitated, undergoes major surgery or travels abroad. If a principal uses a durable springing power of attorney in case he is permanently incapacitated, he can include prohibitions on authority over legal and financial transactions that might negatively impact his estate.

Prohibitions

The principal can protect his assets during a prolonged period of being incapacitated by listing a few prohibitions in a broad and durable power of attorney. Two major prohibitions to consider include the authority to gift and the authority to sell property. These two prohibitions will prevent excessive gifting or liquidation of estate assets during the principal's state of incapacity. If the principal dies, the durable power of authority automatically expires. The agent no longer legally represents the principal and must relinquish all powers of authority. Upon the principal's death, the executor of his estate handles his personal and financial matters according to his last will and testament.

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References

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