A permanent power of attorney is a useful document that grants an agent the power to manage a person's legal and financial affairs during their lifetime. This type of power of attorney is considered durable if it states that it is not affected by the principal's disability. Without this specific language, the power of attorney ends when the principal is unable to make decisions due to mental or physical disabilities. However, if the agent does not have actual notice of the principal's incapacity, any actions taken in good faith on behalf of the principal are legally binding.
A standard power of attorney gives the agent the authority to act on behalf of the principal in day-to-day legal and financial matters. This type of power of attorney expires when the principal dies, becomes incapacitated, or revokes written power of attorney. For example, if you are having major surgery and are concerned about your ability to manage your own affairs during surgery, rehabilitation, and recovery, you can designate someone to be your POA for that period and terminate the POA once you have recovered. A lasting power of attorney is rendered useless after death.
A valid power of attorney expires once the principal dies. Therefore, the law does not allow for its authority to be used as a power of attorney after death. A power of attorney is a legal form that allows the person who creates it (the “principal”) to appoint a trusted person (the “agent”) to act on their behalf. If you are concerned that an agent is abusing your right as a power of attorney, you can find out who can override a power of attorney. Once invoked, it is generally irrevocable unless the principal regains their ability to make decisions for themselves and can revoke the power of attorney; otherwise, it does not expire until the death of the principal. The permanent power of attorney was initially created to address legal complications that may arise if the principal becomes mentally incompetent.
It is this same clause that makes a power of attorney durable, meaning it remains effective even after the principal becomes incapacitated. It is important for agents to fully understand the document and authorities granted with respect to the affairs of the director. Under the law, a power of attorney must be executed while the director is alive and in their right mind acting of their own free will. In addition to different state laws governing powers of attorney, there are numerous variations in POA documents themselves. It is very difficult to revoke a durable power of attorney once established, as it must be proven in court that the principal is in their right mind and able to support themselves.
Generally speaking, an agent's powers should be explicitly spelled out in the document. Contrary to popular belief, only a mentally competent person can legally appoint a power of attorney for themselves. The responsibilities of an executor come into effect after death, while an agent's rights under a power of attorney are only valid before death. There are several types of power of attorney available, each serving a unique purpose and granting agents different levels of authority. Understanding roles and responsibilities as well as defining powers granted to an agent are important elements that need to be carefully considered before signing a power of attorney.
This type of power of attorney only relates to health care decisions and usually does not expire until death or no longer needing specific medical attention.
