Generally, a power of attorney will expire in the following circumstances;
- When the principal dies.
- Where no agents are available to serve.
- Upon termination by a court of law or,
- By revocation by the principal.
During my talks with seasoned attorneys, I have realised that the answer to the question “when does a power of attorney expire?” depends on the type of power of attorney that one is seeking.
In this article, we shall explore circumstances that make a power of attorney expire.
Additionally, the article shall explore the different types of power of attorney and when they do expire.
What is a power of attorney
A power of attorney is a legal document that allows an individual, known as the principal, to appoint another person, known as the agent or attorney-in-fact, to act on their behalf in making financial, legal, or medical decisions.
The question of whether a power of attorney expires depends on the type of power of attorney and the circumstances under which it was created.
Types of power of attorney
We shall explore the four different forms of power of attorneys that are commonly used:
A standard power of attorney
This type of Power of Attorney gives the designate agent the authority to act on behalf of a principal in everyday legal and financial matters.
A standard power of attorney expires on the death or incapacitation of the principal, or by revocation in writing.
Similarly, a limited power of attorney can fall under this type of power of attorney.
A limited power of attorney will give an agent the ability to act on behalf of a principal for specific circumstances. For example, if a principal decides to travel to a foreign country, they can give an agent the authority to make a business decision while the principal is away.
A springing power of attorney
This type of power of attorney will only become effective when a principal becomes incapacitated and gives the agent the authority to now act on their behalf.
A springing power of attorney will also begin when a principal foreseen an illness or absence that will limit them from acting in their interest.
Revocable of this power of attorney is impossible unless the principal regains the capacity to make decisions for themselves.
A springing power of attorney expires on the death of the principal.
A durable power of attorney
Here, the agent will get the power to act when the principal can no longer act in their interest in a reasonable day-to-day manner.
Similar to a springing power of attorney, this type of power of attorney only expires when the principal dies.
To note is that, the process of revoking a durable power of attorney is usually hard.
This is because the principal must prove in court that he is of sound mind and capable of providing for themselves.
A medical power of attorney
This is a type of power of attorney that gives an agent the authority to make medical or healthcare decisions on behalf of the principal.
Once invoked, the agent can make decisions that affect a principal, including life ending decisions, without any legal repercussions following.
A principal can modify or retract certain powers of the agent with regards to terminating life support, when they so choose.
This power of attorney will not expire until the principal dies or no longer needs specific medical care.
Does a Notarized Power of Attorney Expire?
Notarization is the process where a Notary Public screens, certifies and records keeps a document.
This process is usually a fraud-deterrent procedure that assures the parties of a transaction that a document is authentic and can be trusted.
A notarized power of attorney does not expire unless specified in the document. However, it is important to remember that a power of attorney may be revoked at any time by the person who granted it (the principal).
Does a Durable Power of Attorney Expire?
As stated above, the expiry of a durable power of attorney is impossible during the lifetime of a principal.
A durable power of attorney is a type of power of attorney that remains in effect even if the principal becomes incapacitated. This means that the agent can continue to act on the principal’s behalf even if the principal is no longer able to make decisions for themselves. A durable power of attorney expires upon the death of the principal.
Which States Allow Durable Power of Attorney?
Most states have adopted some form of durable power of attorney laws.
These laws allow individuals to create a durable power of attorney that remains in effect even if they become incapacitated.
State Laws for Power of Attorney
Power of attorney requirements vary by state, but typically are signed by the principal and need to be witnessed and notarized.
The laws relating to power of attorney vary from state to state.
Does Next of Kin Override Power of Attorney?
No, next of kin does not override power of attorney.
A next of kin is a person who is to be contacted in case of emergency and has no legal powers to conduct the business of another.
The term next of kin is in common use but a next of kin has no legal powers, rights or responsibilities.
Will my Family Member Revoke a Power of Attorney?
Only the person who appointed the power of attorney or a court can revoke their status. It’s also important to note that a person currently acting as a power of attorney cannot transfer their authority to someone else.
Can Power of Attorney Change Will?
A power of attorney cannot change a properly written will. However, such a person can make many changes to the assets surrounding that estate.
Will Power of Attorney Override a Will?
Testamentary documents such as a will and a power of attorney are two different legal documents that authorize another person to take control of your affairs.
Because these documents perform very different functions—even coming into effect during different circumstances— a power of attorney doesn’t override a will.
Conclusion
In conclusion, whether or not a power of attorney expires depends on its type and the circumstances leading to its creation.
Each power of attorney has specific rules concerning when it’s due to expire.
Consult your attorney or lawyer concerning its expiry.