Power of attorney ends after death. No matter what type it is — a durable power attorney, irrevocable power of attorney, or enduring power of attorney — the rights of the attorney, attorney-in-fact, or agent terminate. These three terms are all descriptive of the person who is granted powers to manage some or all aspects of the grantor’s or donor’s life. Some of the powers include making decisions about medical treatment, buying and selling real estate, and initiating a lawsuit on the grantor’s behalf. There are other ways for individuals to give powers to someone to act on behalf of their estate after death, such as naming the person as an executor in a will or as a trustee.
The legal documents that pertain to how an individual’s estate is managed after death include a will or a trust. In cases where the decedent dies intestate, or without a will, the court will determine how to dispose of the estate and name an executor in the process. A power of attorney cannot take the place of a will, and it is often no longer deemed valid.
The only way that individuals can continue the rights granted to the attorney or attorney-in-fact in the power of attorney is to give them those powers in a trust agreement or to name them as an executor. If the power of attorney pertains to managing health-related affairs of minor children, then naming the agent as a guardian in the will continues those powers after death. If all the decedent has is the power of attorney after death, then the court will appoint a guardian of the child.
If the grantor wants to give an attorney-in-fact the authority to access his or her bank accounts or other accounts at financial institutions after death, the grantor has to name that person on the account as a joint owner or authorized signatory. An executor of the will has the right to access the account once he can obtain a letter of testamentary from the probate court verifying that he is approved to act on behalf of the decedent’s estate. Banks sometimes offer a simplified process, which includes providing a death certificate and a sworn affidavit wherein the affiant attests to assuming her designated duties as an executor. A limited power of attorney grants the same powers while the grantor is alive, but the document is no longer valid after the person's death.
