Is Power of Attorney Valid After Death?

By Tom Streissguth

If you wish to give another person the authority to make important decisions and act on your behalf, you may draw up a power of attorney, or POA. This document allows an agent to sign documents or otherwise act in your place. A specific POA grants authority over a single matter or field, while a general POA gives blanket authorization in any and all matters, as allowed by state law. The POA expires under certain circumstances, including death.

Expiration

By the laws of all states, a power of attorney expires on the death of the principal. More specifically, when an agent learns of the death of a power-of-attorney grantor, he may no longer act as an agent in the principal's place. This means that the agent may legally act on the principal's behalf if he does not yet have knowledge of the principal's death.

Wills

When a principal who has granted a POA dies, his will becomes the authorizing document for an executor. The will must name the executor, who follows instructions given in the will for the handling of finances, dealing with heirs and the estate, and arranging the funeral and burial according to the deceased's wishes. If there is no will, then the principal dies "intestate," and a probate court will divide the assets and act otherwise in accordance with the law.

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Durable POA

If the principal has granted a durable POA, then the agent is authorized to act even after the principal becomes incapacitated. This includes a situation in which the principal is not expected to recover from a coma. Most states require an advance health-care directive, however, in order for an agent to order any procedures that the principal would ordinarily have to personally authorize, such as the removal of life support. In these states, the durable POA would not grant that authority.

Living Trusts and POAs

A living trust provides an alternative to a durable power of attorney. In this document, a principal grants authority to a trustee to manage his financial or legal affairs. The living trust gives specific authority to the trustee, and may also include an advance health-care directive. The trustee acts on behalf of the principal and controls the assets placed in the trust, overseeing distribution of the assets to the beneficiaries according to the trust's instructions. The authority granted by a living trust continues even after the death of the principal, and the trust also allows the estate to avoid distribution by a probate court.

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Laws for Power of Attorney in New Hampshire
 

References

Related articles

The Responsibilities of Medical Durable Power of Attorney for the Elderly

If a person becomes incapacitated, perhaps because of a mental illness like dementia, he can no longer make health care decisions for himself as he once did. If he created a durable medical power of attorney, he named an agent to make his health care decisions if and when he becomes unable to do so and this agent is responsible for following his wishes closely and acting in his best interests.

Does Power of Attorney Override a Will?

A power of attorney may terminate in a number of ways--upon a stated expiration date, when revoked by the principal who gave the power of attorney or upon the death of that principal. Death is the point at which the powers cease under a power of attorney and property passes into an estate, provided other estate planning provisions haven’t been made. If the deceased died testate, or with a will, the terms of her will become effective once admitted to probate.

About Rights of Power of Attorney After Death

A power of attorney is a powerful legal document that allows the person who executes it, known as the principal, to appoint another person, known as an agent or attorney-in-fact, to perform legal acts on his behalf. Normally, a power of attorney automatically terminates by operation of law as soon as the principal dies. Limited exceptions exist, however.

Power of Attorney

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