Trusts and Estates

Terminating a Power of Attorney

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A power of attorney terminates when it is revoked by the person who made the power of attorney (the principal), upon the death of the principal, or when it expires according to its own terms. To protect the person who has been granted the power of attorney (the agent), many state statutes do not terminate the agent's authority until the agent has actual knowledge of the death. The agent's actions are binding on the principal's successors in interest, such as the executor for someone's estate, which provides protection for third parties who deal with the agent.

Some powers of attorney are effective only when the principal has been determined to be incapacitated. This type of power of attorney is called a springing power of attorney. The authority of an agent under a springing power stops when the principal regains capacity. The power of attorney document should contain a separate provision that defines capacity and gives a mechanism for determining when capacity has been restored, a doctor's statement, for example. The same definition and mechanism used to trigger the agent's authority should be applied to end the authority upon the principal's recovery of capacity.

To encourage acceptance by third parties, the Uniform Durable Power of Attorney Act authorizes an agent to sign an affidavit stating that, at the time of the exercise of the power, the agent has no actual knowledge of any the termination of the power. The third party dealing with the agent may treat the affidavit as conclusive proof that the power has not been revoked or terminated. If the agent's exercise of the power of attorney requires the signing and delivery of a recordable instrument such as a deed, the affidavit may be recorded in order to validate the agent's authority. The Uniform Power of Attorney Act of 2006 authorizes a third party to rely on a certification of an agent of any factual matter concerning the principal, agent, or power of attorney.

When Can a Power of Attorney Be Revoked?

A power of attorney can be revoked by a principal who is not incapacitated either by a writing or by other action expressing an intent to revoke, for example, the intentional destruction of the document. It's a good idea to send the agent written notice of the revocation by certified mail, with copies to any third parties who may have dealt with the agent. It's also a good idea to write on the back of the power of attorney the name of each individual who was given a copy of the document. This way, the principal will be able to advise all copy holders of a revocation.

Questions for Your Attorney

  • When does my power of attorney terminate?
  • How can I revoke my power of attorney?
  • What if my agent engages in unauthorized acts after the power of attorney has been revoked or terminated?
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