About rights of power of attorney after death

Written by cindy hill
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About rights of power of attorney after death
Powers of attorney help elders manage their assets ("Hope and Wisdom" is Copyrighted by Flickr user: Todd Baker << technowannabe (Todd Baker) under the Creative Commons Attribution license.)

Powers of attorney are legal documents authorising an agent, sometimes known as an attorney-in-fact, to engage in specific acts on behalf of another person, the principal. With some minor exceptions, powers of attorney terminate on the death of the principal. The agent has no rights or powers pursuant to a power of attorney after the principal's death.

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Function

A power of attorney document authorises and empowers an agent to undertake specific legal or financial business on behalf of the principal. Powers of attorney are useful for carrying out necessary personal business matters when the principal cannot be personally present, or is not capable. Military service personnel often execute powers of attorney to ensure that family back home can borrow money or sell a house if necessary. Elders execute powers of attorney to allow younger family members to assist them with their banking and other business if they have difficulty leaving the house or hearing on the telephone.

Types

There are two basic types of powers of attorney. The first is an ordinary power of attorney, which remains in effect only when the principal is fully competent and capable of communicating, but unable to be present, such as for a real estate closing at a distant location. The second is a durable power of attorney, which grants the agent certain powers which continue or start when the principal is incapacitated, such as a durable health care power of attorney authorising a relative to make medical decisions if the principal is unconscious or unable to speak. Both types of powers of attorney terminate on the death of the principal.

Considerations

Some state's statutes do allow consideration of continuation of some limited powers authorised by the power of attorney document after the death of the principal. Indiana law, for example, allows a person acting under a durable health care power of attorney to request an autopsy, arrange for donation of the principal's organs, or carry out a funeral plan in accordance with the principal's previously-stated wishes. Other states' laws allow the agent to oppose an autopsy request by another, or to decline a previous statement of intent to donate organs. Most states' laws take into consideration whether or not the agent was aware that the principal was dead when acting under a power of attorney. If the agent had not yet been informed, then actions he took on behalf of the principal are valid and binding in most cases.

Effects

Other than under limited statutory considerations, all powers, rights and authorities conveyed by a power of attorney cease when the principal dies. At the time of death, her estate begins, and the legal right to dispose of her assets, collect income or monies owed, pay bills, manage real estate, and all other legal and financial business resides in the estate executor.

Misconceptions

Although the power of attorney ceases at the principal's death, contracts that the agent entered into under that power of attorney do not terminate but continue to be lawful and binding on the principal's heirs or successors. Often, the agent under a power of attorney is also the principal's executor, and so he may continue to exercise authority over the principal's assets and business affairs, but pursuant to his executor powers, not under the power of attorney.

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