When Your Durable Power of Attorney for Finances Ends

A durable power of attorney for finances is valid until you revoke it, you die or there is no one to serve as your attorney-in-fact. A court can also invalidate a power of attorney, but that happens very rarely.

• Revocation
• Invalidation
• Divorce
• No Attorney-in-Fact Is Available
• Death

Revocation

As long as you are mentally competent, you can revoke a power of attorney for finances at any time, whether or not it has taken effect. In most cases, all you need to do is fill out a simple form, sign it in front of a notary public and give copies to the attorney-in-fact and to people or institutions with whom the attorney-in-fact has been dealing.

EXAMPLE: Susan prepares a durable power of attorney naming her closest friend, Tina, as her attorney-in-fact. Three years later, they have a bitter fight. Susan prepares a one-page document that revokes the durable power of attorney and gives Tina a copy. She destroys the old document and then prepares a new one, naming her sister Joan as her attorney-in-fact.

Your power of attorney prints with a revocation form.

If a Conservator or Guardian Is Appointed

If your attorney-in-fact is satisfactorily handling your financial affairs while you can't, it's very unlikely that a court will need to appoint a conservator for you. And if it does become necessary, you can use your document to name your attorney-in-fact to the post.

If, however, you or a family member objected to the attorney-in-fact's actions, a court might appoint someone else as conservator. In a few states, appointment of a conservator automatically revokes a durable power of attorney. In that case, the conservator would become solely responsible for your property and financial matters.

In many states, the conservator would have the legal authority to revoke your durable power of attorney. Someone appointed to take physical care of you—usually called a guardian or guardian of the person—not your property, may also, depending on state law, have the power to revoke a financial power of attorney.

Invalidation

Even if you sign a durable power of attorney for finances, if you become incapacitated there is a remote possibility that a disgruntled relative could ask a court to appoint a conservator to manage your financial affairs.

It's rare, but a power of attorney could be ruled invalid if a judge concludes that you were not mentally competent when you signed the durable power of attorney or that you were the victim of fraud or undue influence. The power of attorney could also be invalidated for a technical error, such as the failure to sign your document in front of witnesses if your state requires it. If that happens, the judge could appoint a conservator to take over management of your property.

In most states, if a court appoints a conservator, the attorney-in-fact becomes accountable to the conservator—not just to you—and the conservator has the power to revoke your durable power of attorney if he or she doesn't approve of the way your attorney-in-fact is handling your affairs. In a few states, however, your durable power of attorney is automatically revoked, and the conservator assumes responsibility for your finances and property.

Divorce

In a handful of states, if your spouse is your attorney-in-fact and you divorce, your ex-spouse's authority is immediately terminated. If you named an alternate attorney-in-fact in your power of attorney, that person takes over as attorney-in-fact. If you didn't name an alternate, your power of attorney ends.

In any state, however, others may question the validity of a document created before a divorce that names the ex-spouse as attorney-in-fact. For this reason, if you get divorced you should revoke your durable power of attorney and make a new one.

No Attorney-in-Fact Is Available

A durable power of attorney must end if there's no one to serve as the attorney-in-fact. To avoid this, we let you name up to two alternate attorneys-in-fact, so someone will be available to serve if your first choice can't do the task.

For a bit of extra insurance, you can also allow the alternate attorney-in-fact to delegate his or her duties to someone else.

Death

A durable power of attorney ends when the principal dies. In most states, however, if the attorney-in-fact doesn't know of your death and continues to act on your behalf, his or her actions are still valid.

If you want your attorney-in-fact to have any authority over winding up your affairs after your death, grant that authority in your will—and in your living trust, if you make one.