In general, a durable power of attorney is intended to stay in effect if the principal becomes incapacitated. If you appoint someone to be your agent under a durable power of attorney and then become incapacitated, would your agent continue to have the same powers? Or does it all end at death? Fortunately, Durable Powers of Attorney can have conditions that extend beyond death. Most commonly these documents will include stipulations that continue the authority if you fall into a coma or some other terminal illness. However, there are also instances where this document can end sooner than expected. To avoid any confusion, you should ask an attorney about how they structure their powers of attorney before finalizing anything. Here are some common questions and answers about Durable Powers of Attorney.
Does A Durable Power Of Attorney End At Death?
Yes, a durable power of attorney ends at death. A durable power of attorney is a legal document that gives someone else legal authority to act on your behalf. It is effective even if you become incapacitated, or pass away.
What Are The Different Types Of Durable Powers Of Attorney?
1. Durable Power of Attorney for Health Care
This type of durable power of attorney gives the agent the legal authority to make medical decisions on your behalf. This type of power is typically used when you are in poor health and no longer able to make decisions for yourself. It may also be used in situations where you are incapacitated but not in a coma, such as a stroke. The agent would have the ability to make medical decisions for you, such as authorizing life-saving procedures or even end-of-life care.
2. Durable Power of Attorney for Property and Financial Affairs
This type of durable power of attorney gives the agent the legal authority to obtain money from your bank accounts, investments, and other types of assets. This includes money that you may have left behind after death, or property that was left to you by a previous partner or spouse. This can be especially useful if you have an estate and do not have a will.
3. Durable Power of Attorney for Personal Care
This type of durable power of attorney gives the agent authority to make decisions about your personal health, including making medical decisions, or even authorizing life-saving procedures. This can be especially useful if you are incapacitated, but not in a coma or other terminal illness.
4. Durable Power of Attorney for Real Estate and Property Management
This type of durable power of attorney is sometimes called a Living Trust. It allows someone else to manage your real estate and property, such as a house or an investment property. You will still have complete control over the property, but your agent will have legal authority to act on your behalf in situations where you are not able to do so yourself.
5. Durable Power of Attorney for Finances
This type of durable power of attorney gives the agent authority to make financial decisions on your behalf. This may include making purchases, paying bills, or managing your finances. It can be especially useful if you have a spouse or partner who has dementia, or is not able to handle money on his or her own.
6. Durable Power of Attorney for Health Care and Property Management
This type of durable power of attorney gives the agent legal authority to make medical and property management decisions on your behalf. It is often used when you are in poor health and no longer able to make decisions for yourself, such as when you are in a coma or terminal illness. The agent would have the ability to make medical decisions for you, such as authorizing life-saving procedures or even end-of-life care.
7. Durable Power of Attorney for a Minor Child
This type of durable power of attorney is also called a minor’s Durable Power of Attorney, and gives the agent authority to act on your behalf in situations where you cannot or will not make decisions for yourself, such as when you are incapacitated or have dementia. This can be especially useful if you have minor children who are not ready to handle their own finances.
What Happens To The Estate When Someone Dies With A Durable Power Of Attorney?
1. The Durable Power of Attorney is Revoked
The agent appointed under the durable power of attorney becomes the person who has control over your estate. The agent is responsible for making decisions about your personal property and financial affairs.
2. The Durable Power of Attorney Terminates When the Agent Dies or Becomes Incapacitated
Once the agent dies or becomes incapacitated, the durable power of attorney ends and the remaining agents become responsible for managing your estate. If you have a living trust, then your heirs will inherit all of your assets under that trust, including any property that you specified in your durable power of attorney but did not give it to anyone else in advance. This includes real estate and any other assets that you own. Your surviving spouse may also be able to inherit some assets as well, depending on how you set up your living trust.
3. The Durable Power of Attorney Terminates When the Agent Is Relieved of His or Her Authority
If you want to revoke the durable power of attorney, you must do so in writing, and then your agent must sign a new durable power of attorney. If the agent is not able to sign a new durable power of attorney, then you can appoint a new agent.
4. The Durable Power of Attorney Ends When You Die or Are Incapacitated
The durable power of attorney ends when you die or become incapacitated. You can also end this type of power by revoking it in writing and replacing it with another type of durable power of attorney that gives someone else authority over your estate.
5. The Durable Power of Attorney Can Be Revoked by Court Order
You can also revoke your durable power of attorney in court if you believe that the agent is no longer able to make decisions for you. You can also do this if you want to give someone else authority over your estate and you don’t want the durable power of attorney to continue.
6. The Durable Power of Attorney Does Not Terminate When You Die or Become Incapacitated
A durable power of attorney doesn’t terminate when you die or become incapacitated. This means that you can leave your estate to your spouse, children, parents, or other people on a continuing basis. This type of power can also be used to give someone else authority over your estate if you are still alive and able to make decisions.
7. The Durable Power of Attorney Can Be Revoked by a Court Order
A durable power of attorney can also be revoked in court if you believe that the agent is no longer able to make decisions for you. You can also do this if you want to give someone else authority over your estate and you don’t want the durable power of attorney to continue.
8. The Durable Power of Attorney Can Be Revoked by Your Agent or by a Court Order
If an agent does not sign a new durable power of attorney within 30 days after he or she receives notice that it is time to do so, then the durable power of attorney ends, even if it has not yet been revoked. If an agent wants to revoke his or her durable power of attorney, he or she must write a letter requesting that the court terminate the power. The court can then terminate the power of attorney if it finds that the agent is no longer able to make decisions for you.
Conclusion
A durable power of attorney can be a helpful way to appoint someone to handle your affairs if you become incapacitated or are expected to die. While there are two types of durable powers of attorney, they both generally serve the same purpose. They allow you to appoint someone to make financial and health care decisions on your behalf if you aren’t able to do so. With a durable power of attorney in effect, your agent can handle all major financial decisions for you.
