A power of attorney, or POA, is a commonly used estate planning tool. Before you consider executing a POA, however, you should understand the power one confers as well as the various types of POAs available. In addition, you need to have a firm understanding of the circumstances under which a power of attorney terminates.
A POA is a legal document that allows you, referred to as the “Principal”, to appoint an “Agent” who will have the legal authority to act on your behalf. The extent of the authority you grant to your Agent depends on the type of POA you execute. A general POA, for example, gives an Agent almost unlimited authority to act on your behalf. A limited POA, on the other hand, only allows an Agent specific authority as outlined in the power of attorney.
Traditionally, an agent’s authority under a POA terminated when the Principal became incapacitated. For many people, this is precisely when they want the POA to work. Therefore, the concept of a “durable” power of attorney evolved. A durable POA is simple one that survives the incapacity of the Principal. In Texas, as is the case in most states, specific language is required to make a POA durable. Once a POA is made durable, it will survive your incapacity. At that point, there are other ways in which a power of attorney may terminate, such as:
- Death of the Principal
- The POA specifically provides a date for termination
- The POA specifies an event that causes it to terminate
- The purpose of the POA has been accomplished in the case of a limited POA
- The Principal revokes the POA
- The Agent dies or becomes incapacitated and the POA does not include a successor Agent
Because a POA can confer a significant amount of power to an Agent it is extremely important that you understand exactly what authority you are granting before agreeing to execute a POA. It is equally important to understand when and/or how your power of attorney terminates. As the Principal you always have the right to revoke a POA after execution; however, there are legal steps you should take to ensure that the POA has been properly revoked should you choose to do so. A forgotten POA can be a dangerous instrument in the wrong hands so be sure to confer with your estate planning attorney if you choose to execute one to ensure that your attorney is aware it is out there.
Stephen A. Mendel, Estate Planning Attorney
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