A power of attorney is a common legal instrument, but the laws governing them vary within the U.S. Be sure to consult an attorney in your jurisdiction if you're either considering granting someone power of attorney or someone wants to grant you that power. You certainly need to know what you're getting into, including having an understanding of whether power of attorney remains after death.
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Definition and Key Terms
A power of attorney is a written document legally authorising another to act on someone's behalf in conducting business, private affairs, health care decisions or another legal matter. The power is given by the granter, who may also be called the principal or donor. The power to act is taken on by the agent, also referred to as the donee or attorney-in-fact. A power of attorney may be revocable - that is, able to be withdrawn by the granter - or irrevokable.
Limited Power of Attorney
If the granter wishes, a power of attorney may be limited. Limitations can apply to the scope of the agent's power; an agent may be given the authority to represent the granter in only a specific act or some specific type of acts, such as making health care decisions. A power of attorney may also be limited as to time; the granter may specify an expiration date on which the power ends. Limitations should be made very clearly in the document, as third parties such as financial institutions and medical professionals may otherwise rely in good faith on the agent having full or general power of attorney.
Durable Power of Attorney
A power of attorney expires if and when the granter becomes disabled. A durable power of attorney, however, remains in effect even in the event of physical or mental incapacitation. Some states allow powers of attorney that don't, in fact, take effect until the granter becomes disabled; this is called a springing power of attorney. The laws in your state may assume that any power of attorney is durable, or they may require that durability - or non-durability - is clearly specified.
Because a power of attorney can give only as much authority as the granter actually has, powers of attorney don't survive the death of the granter. After a person's death, he has no ability to act, and neither does his agent. The executor of a deceased person's estate, whether named in his will or appointed by the court, has the right and responsibility to conclude the deceased's affairs.