Jul 6, 2021 Does a Power of Attorney Expire?

A power of attorney (POA) is a legal document that gives a designated individual (e.g., a trusted friend or relative (known as the agent or attorney-in-fact)) the authority to act on your behalf in legal and financial matters.

A power of attorney lasts for the duration the creator (also known as the principal) stipulates. So, if you set a date for a power of attorney to expire — say the day after you close on your new home when you’re out of the country— the POA will last until that date, and then cease to be effective. The principal can also revoke the POA at any time.

However, if you draft a general durable power of attorney with no expiration date, it will last until you die.  

Let’s take a closer look at power of attorney expiration and revocation.

How is a POA Cancelled by the Creator?

Revocation is the term used when the creator of the power of attorney wants to cancel the document. Typically, you can terminate the agent’s  (typically, a trusted friend or relative) authority under a power of attorney at any time, provided you have the capacity to do so.

You’ll need to sign a separate document revoking the earlier power of attorney. Another option is to create a new, superseding durable power of attorney that designates a different agent, and that specifies that any prior POA is rendered null and void. In either event, it’s wise to inform the now-former agent in writing that you’ve decided to make a change to avoid any confusion and hassle.

In addition to the principal’s revocation, his or her death will cause a power of attorney to expire. When you pass away, any power of attorney that you signed during your lifetime will become null and void.

How Do You Make a POA That Does Not Expire In One’s Lifetime ?

There’s an easy way to create a power of attorney that doesn’t expire before death – by creating a durable power of attorney.  This form of power of attorney will be effective even if you become incapacitated, such as in the event that you suffer from dementia or a serious brain injury.

If you fail to have a legally valid,  power of attorney in place when you become incapacitated, your family will be forced to seek court intervention, and file a petition with the court to have a guardian appointed to manage your personal and financial (property management).

You don’t want this to happen because guardianship proceeding can be very expensive, complicated, time-consuming, and stressful for everyone involved. With a guardianship, your family will be required to ask the court for approval each time they want to make an important decision in your behalf, including spending your money to make sure you have the best care.

Another type of power of attorney is a springing power of attorney.  This type of power of attorney is designed to take effect only in the future, at the advent of a future event (i.e. your incapacitation). For those more reticent to give POA  authority when they are able to act themselves. The springing power of attorney  gives the agent the authority to manage your affairs only when you are unable to do so.

Takeaway

Make certain you have a valid New York POA because there was a change to POAs in New York that was effective on June 13, 2021. These changes simplify and improve the powers of attorney in our state.

The new law makes rejection of a POA less likely because it no longer requires that the POA instrument incorporate the exact wording of the statutory POA form, as long as it substantially conforms to it.

The new law also discourages financial institutions from improperly refusing to accept the POA form by allowing a court to impose penalties and attorney fees against institutions that unreasonably refuse to accept a principal’s valid power of attorney form.

Ask the experienced estate planning attorneys at Ely J. Rosenzveig & Associates, P.C. (www. Ejrosenlaw.com) to help you draft your powers of attorney, as well as a comprehensive estate plan for you and your family.

We are trusted estate and Medicaid planning attorneys serving White Plains, New York, Westchester County, and the tri-state area.