Estate Planning 101

When Does a Power of Attorney Expire in North Dakota

This article will delve into the different types of POAs, their durations, and their expiration policies within the jurisdiction of North Dakota. We will also explore the potential responsibilities that someone with POA may have to handle after the death of the individual they represented.
September 14, 2023

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In the field of estate planning, a Power of Attorney (POA) is a vital legal tool that empowers an individual (the principal) to appoint another person or entity (the agent) to manage certain affairs on their behalf. If you are a resident of North Dakota, it is crucial to understand the duration of a POA and the circumstances under which it may come to an end. The lifespan of a POA is often determined by its type - durable, springing, limited, or medical - and the stipulations set out in the document itself.

Generally, the duration of a Power of Attorney is defined within the document:

In most situations in North Dakota, the lifespan of a POA is determined by the conditions mentioned in the document itself. This means that the POA could be arranged to end on a specific date, when a certain event occurs, or when the principal becomes incapacitated or passes away. These conditions can be specifically defined by the principal when creating the POA to meet their individual needs.

The type of Power of Attorney also determines its duration:

Understanding the various types of POAs and their respective expiration rules is essential. Each type of POA has unique characteristics and expiration rules.

  1. Durable Power of Attorney: A durable POA continues to be effective even if the principal becomes mentally incapacitated. For example, in the case of cognitive impairments like dementia, the durable POA will continue to function, allowing the agent to make decisions on behalf of the principal. However, like all POAs, it ceases to be effective upon the principal's death.
  2. Springing Power of Attorney: A springing POA only comes into effect under specific conditions, typically the principal's incapacitation. For instance, if a principal becomes unconscious due to an accident, a springing POA would spring into action, allowing the agent to make necessary decisions. Unless otherwise specified in the document, the POA becomes invalid once the principal regains capacity.
  3. Limited Power of Attorney: Also known as a special POA, it is used for a specific purpose or for a limited period. For instance, if a principal needs someone to handle their financial affairs during a temporary absence, a limited POA could be used. Once the specific task is completed or the duration is over, the POA automatically ends.
  4. 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 type of POA expires when the principal dies or revokes the POA, or when the principal regains the ability to make their own decisions.

Gaining a solid understanding of these different types of POAs and their respective expiration rules can help individuals and their appointed agents navigate the legal landscape of power of attorney in North Dakota more effectively.

Revoking a Power of Attorney:

If a principal decides to revoke a POA before its stated expiration date, they must adhere to certain legal procedures as defined by North Dakota law. Revoking a POA requires more than just a simple declaration; it involves a thorough understanding of legal procedures to ensure all responsibilities are properly terminated.

  1. The principal must create a written notice of revocation. This document should include the principal's name, the agent's name, and the date the original POA was executed. This document must be signed and dated by the principal.
  2. 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 be 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 holds 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 a knowledgeable attorney to guide you through the process in compliance with North Dakota law.

Power of Attorney after the principal's death:

Once the principal passes away, the POA typically becomes null and void. The agent does not have the authority to handle the deceased's estate. This task falls to the executor named in the deceased's will or to the administrator appointed by the probate court if no will is present.

The executor or administrator's role starts upon the principal's death, while the agent's role ends. The executor or administrator is responsible for gathering the deceased's assets, paying off any debts or taxes, and distributing the remaining assets to the beneficiaries as per 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 defined 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 scenarios, 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.