Do You Still Have Power of Attorney if Someone Dies?

By Jeffry Olson, J.D.

Do You Still Have Power of Attorney if Someone Dies?

By Jeffry Olson, J.D.

Power of attorney, or POA, grants certain powers to a designated individual, called the agent, during the life of the person granting them, call the principal. It is a useful and powerful tool often used in estate planning. During the principal's life, it allows the agent to manage or help manage the affairs of the principal. However, a power of attorney is only valid during the life of the principal. It expires upon the principal's death.

red haired woman sitting in office and looking down at paper

Uses of a Power of Attorney

A power of attorney creates an agent-principal relationship for managing the principal's financial assets. A health care directive allows the agent to manage medical care and treatment of the principal.

The authority granted depends on the wishes of the parties as reflected in the language of the applicable document. The power may be broad, allowing the agent to manage all of the principal's finances. Alternatively, the powers might be limited, only allowing the agent to pay bills, for example. In some cases, a power of attorney might be valid for a single transaction, such as a real estate closing that the principal is unable to attend.

A power of attorney may also be either durable or nondurable. A durable POA lasts even when the principal becomes incapacitated. A nondurable POA expires when the principal becomes incapacitated. The parties must consider the purpose when creating it. For example, if the purpose is to manage the principal's finances after incapacitation, they must draft a durable power of attorney. Both durable and nondurable powers of attorney expire upon the death of the principal.

Executor's Duties

Upon the death of the principal, the executor named in the deceased's will or trust manages the deceased's financial affairs. This may be the same person who previously had power of attorney for the principal, but the principal names the executor separately. Providing someone power of attorney does not result in that person becoming executor of the principal's estate.

If the deceased does not have a will or other estate plan, the deceased died intestate. In that case, the probate court names an executor for the estate. The court-appointed individual is then responsible for managing the estate of the deceased pursuant to state law. This may not necessarily be consistent with the wishes of the deceased.

Power of Attorney After Death

A power of attorney does not survive the death of the principal. This is true regardless of the type of agreement set up between the parties. The financial affairs of the deceased are managed by the executor of the estate as named in the deceased's estate plan. If the deceased has no estate plan, a probate court appoints an executor to manage the estate pursuant to state law.

In such a case, the court makes no attempt to discern the wishes of the deceased. Remember, establishing a power of attorney does not substitute for estate planning because the power of attorney ends upon the death of the principal. If you are interested in creating a document identifying a power of attorney, consider these facts and understand the legalities behind it.

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.