What Happens To Power Of Attorney After Death?

A power of attorney is an estate planning document granting someone the authority to make choices on behalf of the principal. As such, it’s one of the best ways to avoid a court-appointed conservatorship.

But what are its limits? What happens when a principal dies? Can a power of attorney withdraw money after death?

There are many questions we need to answer, so let’s get right into it.

Basics Of Power Of Attorney

As we explained briefly, a power of attorney is a legal document that allows individuals to authorize others to act on their behalf in certain situations. The person creating the document is referred to as the principal, while the person assigned to fulfill the obligations is called the agent. 

Generally, most people assign a family member as an agent, but there are no restrictions as anyone can take on this role. For instance, it’s not uncommon for wealthier individuals to name their trusted attorney as an agent. 

There are different types of power of attorney and they’re based on the scope of the legal authority granted to the principal. For example, a general power of attorney provides authorization on different decisions, including financial transactions, as well as health and legal decisions. 

On the other hand, power of attorney can also be specific and only allow the agent to make medical decisions (healthcare power of attorney) or financial matters (financial power of attorney). 

There are also durable and non-durable power of attorney. The former stays in effect even when the principal becomes incapacitated, while the latter expires upon incapacitation. In most states (including Florida), the durable variant is the default, so if you want to create a non-durable power of attorney, you must clearly state your intentions. 

What Happens When The Principal Dies?

A power of attorney expires as soon as the principal passes away. While there are different ways a power of attorney document could expire (including an expiration condition), regardless of the terms, the agent loses their authority when the principal dies.

Who gets the authority and who will divide the principal’s assets?

In short, the probate process will govern the division of the estate. More precisely, the personal representative (named in the will or appointed by the court) will oversee the administration. 

Keep in mind that the agent can continue their duties, but only if they were appointed as the personal representative by the decedent in their will or by the court in cases where the decedent died intestate (fancy expression for passing away without a valid will).

Does a durable power of attorney also expire after death?

The name may indicate otherwise, but durable power of attorney stops being valid when the principal passes away. 

Is There Anything An Agent Can Do After The Principal Dies?

Rightfully so, many people wonder what is within the agent’s power once the principal dies. After all, it would certainly be convenient. As such, can a power of attorney withdraw money after death is a common question we get from clients.

The rules still apply. Even if the agent has the best intentions, like helping the personal representative handle time-sensitive financial matters, they no longer have the authority to make any decisions on behalf of the estate. 

In conclusion, the answer to the question of can a power of attorney withdraw money after death is a resounding no.

Can Power Of Attorney Abuse Happen After Death?

Even though a power of attorney expires right after the principal’s death, the agent may continue to use the former designation for nefarious reasons. This is referred to as an abuse of power of attorney and is a civil and criminal offense. For instance, they may continue to present themselves as the agent in order to gain a financial advantage at the expense of legal beneficiaries. 

Power of attorney abuse can also occur before death. 

One example of this includes inheritance hijacking, which happens when the agent unlawfully transfers assets from the principal’s name to their own. Beneficiaries may not even realize this has occurred until probate starts and they notice the assets missing.

What To Do If You Suspect Power Of Attorney Abuse?

If you suspect the agent is committing fraud, embezzlement, or theft (altering the estate for their benefit), you have many legal remedies available. Since all these behaviors may fulfill the criteria of criminal acts, the district attorney may pursue criminal charges against the agent - provided there is enough evidence.

The beneficiaries may also file a civil suit to return the misappropriated assets to the estate. Do note that while the agent may not be able to get away with simply handing over the assets in question, they may also face steep fines or punitive damages. 

A good way to protect the estate from abuse is to monitor the former agent by hiring an accountant or an estate planning attorney who can review all the financial statements regularly. If there’s anything fishy going on, such as unauthorized transactions, these individuals will have no trouble spotting it. 

Protect Your Estate With The Law Offices Of Mary E. King

A power of attorney doesn’t last forever. The agent has absolutely no legal authority to act on behalf of the principal when they pass away. This includes everything from writing checks to closing bank accounts. 

The individual who takes over this role is the personal representative. They’ll oversee the probate process and administer the estate. 

If you suspect the former agent is committing power of attorney abuse after death, contact an estate planning attorney immediately. Experts at the Law Offices Of Mary E. King can closely evaluate all financial statements and ascertain whether anything shady is going on behind the scenes. 

Due to our decades of handling such sensitive matters, we can help protect your estate with ease. If needed, we can pursue legal action against the agent to restore your loved one’s hard-earned assets. 

Reach us at 941-906-7585 or fill out our contact form, and we’ll review your case free of charge. 

Note: 

The information in this blog post is for reference only and not legal advice. As such, you should not make legal decisions based on the information in this blog post. Moreover, there is no lawyer-client relationship resulting from this blog post, nor should any such relationship be implied. If you need legal counsel, please consult a lawyer licensed to practice in your jurisdiction.