A power of attorney is a legal document that gives someone (an agent) authority to act on behalf of another (a principal). A power of attorney needs to be active when important medical decisions and financial decisions have to be made.
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This article examines when legal authority invests in the person who is acting as an agent, and when power of attorney ends.
Types of Powers of Attorney
When legal authority begins and ends will depend upon the type of power of attorney document that’s created, and the conditions it defines. There are three kinds of power of attorney (POA):
- A durable power of attorney
- A springing power of attorney
- A limited power of attorney
Each of these POAs can provide authority for different types of decision-making:
- Financial power of attorney: This gives someone the authority and fiduciary responsibility to take care of financial affairs.
- Healthcare power of attorney: This gives someone authority to make medical decisions, nursing home decisions, and even end-of-life decisions. Depending on the state you live in, it can also be called a healthcare directive and living will.
- General power of attorney: This gives someone overall authority to make any decision on behalf of the principal that is allowed by state law.
When Does Legal Authority Invest in the Agent?
A durable power of attorney becomes effective as soon as it is signed. The person you name as your agent (also called an “attorney-in-fact) has the legal authority to make decisions immediately on behalf of you, the principal.
A healthcare power of attorney gives authority for healthcare decisions and an accompanying living will spells out in greater detail the kind of care the principal wants and does not want. A financial power of attorney provides authority for financial matters.
A limited power of attorney gives someone authority to take a specific, predetermined action or to act for a specific time frame. It becomes effective when it is signed, or at a specific time. For example, it may be used to allow someone to represent the principal in the purchase or sale of real estate. It may allow someone to make financial decisions for a business while the principal is traveling.
A springing power of attorney becomes effective in the future, at a specific time, or after the principal becomes incapacitated.
When Does a Power of Attorney End?
A limited power of attorney expires when the specific task is done or when the date specified in the legal document is reached. The principal does not need to take any action to revoke authority.
A durable power of attorney and a springing power of attorney can be ended in several ways:
- A durable POA can be revoked by the principal at any time. The document can be destroyed or a new document drafted naming a new agent.
- A durable POA terminates upon the death of the principal. If any decisions need to be made after death, for example, any financial decisions about the estate, authority for those decisions transfers to the executor named in the will or a personal representative.
- The authority of an agent can be challenged if loved ones believe the agent is not acting in the best interest of the principal. For example, if family members suspect that a sibling who has financial power of attorney for their elderly mom is draining her bank account, they can take legal action to terminate the power of attorney.
To bring a legal challenge, family members can hire an estate planning attorney with experience in probate court litigation. They will need to have evidence of wrongdoing. Furthermore, someone else will need power of attorney or they may offer to become a guardian of the person or conservator of the estate.
Need Legal Advice About Ending a Power of Attorney?
If you are concerned about caring for senior family members, talk to an elder law attorney about how a power of attorney can allow someone to make decisions when they need to be made. There are law firms that specialize in elder law planning.
People of all ages, however, can benefit from having a power of attorney document in force in case of emergency. An estate planning attorney can help to draft a document, or you can create a DIY power of attorney through FindLaw’s Estate Planning Legal Forms and Services section.
