Can POA Supercede Spousal Rights?

By Stephanie Kurose, J.D.

Can POA Supercede Spousal Rights?

By Stephanie Kurose, J.D.

A power of attorney, or POA, is a legal document that allows a person to give someone else authority to make decisions on their behalf. Spouses often give each other power of attorney, but this is not always the case. When a married person selects a third party to be their POA, it can create confusion or tension down the road, so it is important to know exactly what powers a POA grants and how the document affects spousal rights when it comes to certain decisions.

Man in suit shaking other person's hand

Power of Attorney Terminology

The person creating the POA is called the principal, and the person receiving authority is the agent or attorney-in-fact. While sometimes called attorney-in-fact, a person does not have to be an actual attorney to be an agent. However, they should be someone the principal trusts, as power of attorney is a great responsibility.

What POAs Cover

POAs can cover a wide variety of situations, but some of the more common uses are financial affairs and healthcare decisions. A POA that covers the principal's finances can give an agent the authority to manage bank accounts, investments, business matters, or real estate transactions. A healthcare POA can give an agent authority to make certain decisions about treatment, medical preferences, or other end-of-life decisions on behalf of the principal. As you can see, if a POA is general in scope, it gives an agent very broad authority over important decisions.

Spousal Rights and Power of Attorney

The principal's power of attorney only authorizes the designated agent to act on behalf of the principal—not anyone else. The agent cannot act on behalf of the principal's spouse, and the spouse does not have the power to terminate or modify the principal's POA. As stated above, spouses often grant each other POA for certain areas of their lives. However, when this is not the case, it can be confusing and problematic for both the agent and the spouse if there are ever disagreements between the two over certain decisions relating to the principal-spouse and their affairs. To minimize any problems, the principal should make it very clear what the POA authorizes the agent to do.

Spousal Rights and Medical Power of Attorney

Contrary to popular belief, the spousal relationship does not automatically create a power of attorney relationship whereby a spouse can automatically make healthcare decisions for the other spouse if they become incapacitated or mentally incompetent. In fact, if a principal has a medical POA, the agent's decision trumps that of the spouse.

Spousal Rights and Financial Power of Attorney

For financial matters, an agent's authority is limited to managing the principal's personal, separate assets. This authority does not carry over into marital property, which is property jointly owned by both spouses. The spouse maintains their right to use and manage that property as they see fit.

It is important to understand the role a POA designates for an agent and how that impacts spousal rights in certain life situations. For more information, consult an attorney or an online legal services provider.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.