Can a Durable Power of Attorney Act After the Person Is Deceased?

A durable power of attorney is a legal document that creates a special kind of principal-agent relationship. Each state has its own laws governing the use of durable powers of attorney. Always talk to a qualified lawyer in your area for legal advice about what your state requires and what you need to do to properly use a durable power of attorney in your state.

The person who creates a power of attorney is called the principal. The principal grants the agent, also known as the attorney-in-fact, the right to make decisions on the principal's behalf. Powers of attorney can only be conveyed in writing and only by a principal who is an adult and of sound mind. A principal who is mentally incapable, whether due to illness, injury or any other cause, is not legally capable of granting power of attorney.

Powers of attorney typically terminate automatically as soon as the principal becomes disabled or can no longer revoke the power of attorney. A durable power of attorney is one where this restriction is eliminated and the attorney-in-fact can continue to act even if the principal is no longer capable of revoking the power of attorney. However, all powers of attorney terminate as soon as the principal dies, whether or not the power of attorney is durable.

A principal can revoke the attorney-in-fact's right to act on his behalf at any time. If the principal is no longer capable of doing this, then the attorney-in-fact's powers can only be revoked upon the death of the principal, or if the principal regains competency and then revokes the power of attorney. Also, a power of attorney document itself can include conditions or clauses that terminate the agent's abilities to act, such as granting the rights for a limited time.

An agent who was granted durable power of attorney has the right to act for as long as the principle is alive or, in the event the principal dies, for as long as the agent is unaware of the principal's death. For example, if a principal gives his agent durable power of attorney over finances, the agent has the right to conduct the principal's business affairs while the principal is incapacitated. If the agent buys property on the principal's behalf after the principal dies, that transaction is still valid as long as the agent was unaware that the principal was dead.