Understanding the duration and expiration of a Power of Attorney (POA) is a crucial component of estate planning. In Delaware, the longevity of a POA is influenced by several factors, including the type of POA - whether it's durable, springing, limited, or medical - and the specific terms of the POA agreement itself.
A Power of Attorney usually lasts as long as you want it to:
In Delaware, the duration of a POA is typically determined by the specifications outlined in the document itself. This means that the POA can be set to expire on a certain date, upon the occurrence of a specific event, or upon the incapacitation or death of the principal. The principal can define these conditions at the time of drafting the POA to cater to their specific requirements.
The type of Power of Attorney also plays a role:
Understanding the different types of POAs and their respective expiration rules is key. Each type of POA operates differently, and its expiration can be influenced by its nature.
- Durable Power of Attorney: This type of POA remains effective even if the principal becomes mentally incapacitated. It allows the agent to continue making decisions on the principal's behalf, such as in cases where the principal is diagnosed with dementia. However, like all types of POA, it becomes void upon the principal's death.
- Springing Power of Attorney: A springing POA becomes effective under certain conditions, typically when the principal becomes incapacitated. For instance, if a principal has a stroke and is unable to communicate, a springing POA would become active, allowing the agent to make decisions. However, this POA ceases to be effective once the principal regains capacity, unless otherwise specified in the agreement.
- Limited Power of Attorney: Also known as a special POA, it is used for a specific purpose or for a limited period. For example, if the principal needs someone to handle their affairs while they are out of town, a limited POA could be used. Once the specific task is completed or the duration is over, the POA automatically ends.
- Medical Power of Attorney: This type of POA authorizes the agent to make medical decisions for the principal if they become unable to do so. This POA expires when the principal dies or revokes the POA, or when the principal regains the ability to make their own decisions.
Understanding these different types of POAs and their respective expiration rules can help individuals and their appointed agents to navigate the legal landscape of power of attorney in Delaware more effectively.
Revoking a Power of Attorney:
If a principal decides to revoke a POA before its stated expiration date, they must follow certain legal procedures under Delaware law. The revocation process can be complex and requires a strong understanding of legal procedures to ensure all responsibilities are properly terminated.
- The principal must create a written document known as a "Revocation of Power of Attorney." This document should include the principal's name, the agent's name, and the date the original POA was executed. It's important that this document is signed and dated by the principal.
- The principal should then deliver this revocation notice to the agent. This can be done in person or through certified mail with return receipt requested, to ensure proof of delivery. It is also recommended to notify any third parties (like banks or other financial institutions) that may have been dealing with the agent under the authority of the POA.
Once these steps are completed, the revocation is generally effective immediately, and the agent no longer has the authority to act on behalf of the principal. However, in some cases, such as with a durable POA, the principal may need to record the revocation at the local county recorder's office where the original POA was filed.
It's important to note that if the principal is mentally incapacitated, they cannot legally revoke a POA. In such a case, a court may need to intervene to determine the validity of the revocation. If you are considering revoking a POA, it's always recommended to consult with an experienced attorney to guide you through the process in compliance with Delaware law.
Power of Attorney after the principal's death:
Upon the death of the principal, the POA generally becomes null and void. The agent does not have the power to handle the deceased's estate. This responsibility falls to the executor named in the deceased's will or to the administrator appointed by the probate court if no will exists.
The executor or administrator's role begins upon the principal's death, whereas the agent's role ends. The executor or administrator is responsible for gathering the deceased's assets, paying any debts or taxes, and distributing the remaining assets to the beneficiaries as specified in the will, all under the supervision of the probate court.
Trustees, on the other hand, are individuals or entities appointed to manage a trust established by the principal. Unlike a POA or executor, a trustee's role does not necessarily end with the death of the principal. Instead, their responsibilities continue as outlined in the terms of the trust agreement, which may include distributing the trust's assets to beneficiaries.
In some cases, the agent may also be named as the executor or trustee. In such cases, their responsibilities could extend beyond the principal's death, but their role changes. As an executor or trustee, they are no longer acting under the authority of the POA but rather under the authority of the will or trust agreement.
