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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Can a POA Change a Will?

References

Related articles

Do You Still Have Power of Attorney if Someone Dies?

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.

Does Power of Attorney End Upon Death?

A power of attorney is a legal document that grants authority to another person to administer all or some of your affairs. The person who grants the power of attorney is known as the principal, and the person who takes over the authority is known as the agent. Each state has its own power of attorney laws that determine the effect of death, although many follow the legal rules set out in the Uniform Power of Attorney Act, a model law that aims to unify state laws.

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.

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