Q, My wife and I were wondering whether a Power of Attorney that each would give to the other would end upon death? Can you advise?
A. Short answer. Yes! A Financial Power of Attorney (“POA”) generally ends upon the death of the principal, the principal being the one who gives the “powers” to an agent, the latter being a person whom we sometimes call an Attorney-in- Fact (”AIF”). The only exception to this rule is where the agent, in good faith, is not aware that the principal has died, and in good faith exercises the powers granted in the document for the benefit of the principal, even after his or her death.
Where the agent acts in good faith, the law protects him from liability. It also provides a procedure whereby – upon the preparation of a sworn affidavit attesting to the agent’s lack of knowledge of the principal’s death – the agent’s innocent actions under the POA may be affirmed and bind the estate of the principal, just as if he were still alive. Otherwise, upon the death of the principal, the agent is only authorized to take proper steps to return the principal’s property and records of transactions to the proper custodian, and to provide an accounting of the agent’s actions if properly requested.
By the way, another circumstance that would terminate the agent’s authority is if the agent and AIF were husband and wife and their marriage is dissolved or annulled.
For a principal who wishes to have a surrogate continue to manage his property after death, the most appropriate options are to so name the Agent as Executor in a Last Will, or as Successor Trustee in the principal’s Trust.
As to a Healthcare Power Of Attorney, or what is more frequently called an Advance Health Care Directive, the document normally does confer upon the agent limited post-mortem powers even after the principal’s death. Those powers are as follows: to dispose of the principal’s remains, to authorize an autopsy, to donate all or part of the principal’s body for transplant, education, or research purposes, and to inform individuals designated by the principal of his or her death. Of course, the principal may– in the Advance Health Care Directive, itself– restrict even these post-mortem powers if he wishes, but otherwise the Agent would the have powers indicated even after the principal’s death.
I hope this helps.
Gene L. Osofsky is an elder law and estate planning attorney in the East Bay. Visit his website at www.LawyerForSeniors.com.