Powers of attorney are automatically revoked as of the date of death. There is a common misconception that these powers survive death. As this is not correct, it is imperative to have a trust which allows for this authority to survive after death. There are many different powers of attorney however this article will focus on two: general durable power of attorney and special power of attorney.
In a general durable power of attorney, any previous powers of attorney will be revoked. The only exceptions will be powers granted in order to write checks, deposit funds and withdraw funds as well as access to safety deposit boxes. There is next a statement of intent for the power of attorney and the appointment of the agent. We almost always suggest that you choose an immediate relative [spouse, children, parents] to protect you. The authority under the general durable power of attorney will continue until revoked.
There is next the enumeration of specific powers granted. These include, but are not limited to, the following: convey real or personal property; receive and endorse checks; deposit checks and withdraw funds; execute or release mortgages, deeds of trust or other security agreements; apply for and endorse and transfer any title of motor vehicles; endorse, convey and transfer business interests; execute papers necessary to change the ownership and/or beneficiary designation on any annuity, individual retirement account, Keogh plan, 401K or other qualified retirement plan; access any safe deposit box; prepare and sign and file joint or separate income tax returns; appoint ancillary agents and resign in writing.
There are also clauses in the general durable power of attorney for the effect of duplicate copies or originals, release of information, reliance on the document, validity of the document, appointment of ancillary agents, fiduciary eligibility of agent, agent compensation, liability of agent, enforcement of agent's authority, amendment and revocation and severability. This document needs to be signed and dated and also needs to be notarized by a licensed Notary Public of the State of California. As a courtesy to our clients, our office provides in office notary services.
In a special power of attorney, there is more limitation on the powers. These can be used for any specific act necessary. These include the clauses for the statement of intent, effectiveness of agent appointment, specific limited powers, use of the agent "nomenclature", effect of duplicate originals or copies, release of information, reliance on the documents, validity of the document, appointment of ancillary agents, agent compensation, liability of agent, enforcement of agent's authority, amendment and revocation and severability. As with a general durable power of attorney, the special power of attorney also has to be signed and dated and then notarized.
It is important to remember that a power of attorney does not replace a living trust because it expires when you die. It cannot provide for the distribution of your estate to your intended beneficiaries. Similarly, the power of attorney for financial affairs does not extend to health care decisions.