What Do You Call the Absolute Power of Attorney?

By Teo Spengler

You may find references on the Web to an "absolute" power of attorney that remains in effect after death, but no such animal exists. Although these important legal documents can grant agents extremely broad authority in both financial and health care matters, every power of attorney expires upon the death of the maker.

Powers of Attorney

Powers of attorney have little to do with lawyers. Rather, the legal documents are vehicles that allow you to appoint someone to make decisions and take actions in your place. The person making the power of attorney, termed the principal, decides on the scope of the authority granted. For example, you can use a financial power of attorney to name an agent to sell your house or you can name someone to take complete control of your finances.

Terminating Powers of Attorney

A competent principal can terminate her power of attorney at any time after making it. No formal revocation procedure is necessary as long as the agent is informed, but it is preferable to put it in writing. Regular powers of attorney also expire if the principal becomes incapacitated, but durable powers of attorney do not; they continue in full force until the principal's death. An agent misusing authority granted under a power of attorney, the POA can be terminated by the court.

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Death Ends All

The death of a principal terminates a power of attorney in every state. Since an agent's role is to make decisions and take actions in a principal's stead, it makes sense that this authority terminates with the demise of the principal. After a principal dies, her estate passes to her heirs or beneficiaries, who can manage their affairs as they see fit.

Absolute Power of Atttorney

Although no power of attorney lasts beyond the death of the principal, such sweeping powers are afforded by a durable, general power of attorney that it may be appropriate to call it absolute. Whether financial or medical, a durable power of attorney gives the agent the right to act virtually unsupervised in the principal's stead. Although the agent is in a fiduciary relationship with the principal, charged with a very high duty of good faith and fair dealing, it is difficult for loved ones to monitor an agent's actions if the principal is incapacitated.

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Can a Judge Take Away Someone's Durable Power of Attorney?

References

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Can I Be Held Responsible for Nursing Home Bills as Power of Attorney for an Individual?

Losing the ability to make decisions regarding personal finances is a reality that often comes with advanced age. For elderly people who are nursing home residents, having an effective power of attorney (POA) in place helps ensure that day-to-day financial affairs will be handled in the case of incapacity. However, agreeing to serve as an agent under a POA does not make you personally responsible for payment of nursing home bills. For that reason, the law provides that you make decisions that further the best interest of the incapacitated person.

Can a Power of Attorney Be Revoked by a Mentally Incompetent Principal?

Power of attorney is one of several legal mechanisms designed to protect a person's legal interests. A durable power of attorney allows someone designated by the principal, or the person executing the power of attorney, to act as an agent on the principal's behalf. While power of attorney may be revoked, the law does not allow a mentally incompetent principal to do so.

Difference of Power of Attorney & Executor of Will

The difference between an attorney-in-fact appointed to act under a power of attorney and an executor appointed to act under a last will and testament is literally the difference between life and death. The principal, or maker of a power of attorney, appoints an attorney-in-fact to handle her affairs during her lifetime. The maker of a will, or testatrix, however, designates an executor to handle her affairs after death.

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