Q. My mother named me as her agent under a power of attorney several years ago. Sadly, she recently passed. Can I still use it to take care of her financial matters as her agent?
A. Unfortunately, no. Your mother’s financial power of attorney expired upon her death and is no longer valid. This fact often comes as a surprise to some clients who believe that a power of attorney (“POA”) survives the principal’s death, especially if designated as a “durable” POA. That is simply not the case. Rather, the word “durable” in this context only means that it survives the principal’s incapacity.
The POA is a feature of the law of agency. Historically, the agent could only act in the principal’s name so long as the principal were alive and able to later affirm, if necessary, the act of his agent. In former times, therefore, the agent’s powers in a POA terminated upon either the death or incapacity of the principal. Reason: after either event, the principal could no longer affirm the agent’s acts.
Eventually, however, the law changed to provide that disability would not necessarily be a terminating event. In 1984, California adopted the Uniform Durable Power Of Attorney Act which provided that, if the POA were expressly made to be “durable”, it would survive the principal’s incapacity and remain valid. The law reasoned that the occurrence of disability was precisely when the POA was needed most. However, death still remains a terminating event. Exception: if the agent is unaware of the principal’s death, the agent’s actions until so notified are lawful.
Other terminating events include: revocation of the agent’s authority by the principal, dissolution or annulment of the marriage as between the principal and the agent, death of the agent, and the fulfillment of the purpose of the POA if designed for a specific purpose.
Compare the powers of a health care agent under an Advance Health Care Directive. In this instrument, the agent is expressly authorized to make some decisions after the principal’s death, including the following: making a disposition of the principal’s body or organs under the Uniform Anatomical Gift Act, authorizing an autopsy, directing the disposition of remains, and authorizing the release of the principal’s medical records where necessary.
So, after your mother’s death, your authority to take care of her financial matters would no longer derive out of the POA. Instead, they would arise–if at all–from other legal instruments: (1) from your mother’s Living Trust, if you have been nominated as successor trustee, (2) from her Last Will, if you have been nominated as her executor, but only after the court approved the validity of the will, or, (3) if no will, upon your designation by the court as the administrator of your mother’s estate. By contrast, you would have some limited powers, after death, under her Advance Health Care Directive so that you could direct the disposition of her final remains.
It may be helpful to think of the powers granted in the different legal instruments in this manner: the powers in the POA end upon your mother’s death, the powers in her Last Will arise only after her death, and the powers in her Living Trust, if any, can straddle the period both before and after her death.