There are a number ways that a power of attorney (POA) document can be created. The terminology in this document can be tailored to clarify what particular powers the principal (the individual that signs the document) awards to the agent (the individual designated to act on behalf of the principal) and when those powers are able to be used. For instance, a durable power of attorney documentation is perfect since an agent retains the capability to act for the principal should they become incapacitated, in which these powers are most important.
Nevertheless, of when the POA goes into effect, all powers under a POA conclude when the principal passes away. (The one exception is with a non-durable POA, which concludes if and/or when the principal has been established as incompetent.) Following the principal passing away, the agent forfeits all ability to act in their place equally medically and financially.
Accessing Assets Following a Loved One’s Passing
Obviously, medical POA is no longer required for a loved one once they’ve died. Nevertheless, most individuals leave behind bills that still need be paid, and accessibility to their finances is needed to take care of these matters. A lot of family caretakers that were designated as a senior’s financial power of attorney are stunned to discover that their POA is not valid and they no longer have legal accessibility to their loved one’s financial institutional accounts.
There are just a couple of ways that a family caretaker that was in the past given financial POA would be able to get access to the assets of their deceased loved one.
The Agent Was Also Designated As Executor
If the deceased drafted and signed a genuine will that designates an executor, then that individual is going to have access to the accounts for the sole purpose of managing the estate and directing probate. The agent under POA is required to give up their financial accessibility unless they were also designated as executor in the will.
The Agent Was Designated As Beneficiary or Joint-Owner of Accounts
The POA keeps access to any of the deceased’s assets that appoint them as joint-owner or payable on death or transfer on death beneficiary. Assets that generally have POD/TOD designations or may be collectively titled. Comprising of life insurance proceeds, financial institution accounts, retirement accounts and securities accounts. When titled properly, these assets usually don’t have to go through the prolonged probate process since they pass directly to the appointed individual.
The Agent Is Required to Request to Become Executor of the Estate
When the deceased passed away devoid of a will (intestate) or had a legitimate will but didn’t designate an executor (also called a personal representative in a few states), then the agent is able to request the local probate court to be designated as such, in which would then allow them access to the estate. When the POA’s designation as executor is challenged by an individual that wishes to take on this role, the fact that the deceased designated this individual as their agent may be used to back their designation.
Please note that, if an individual has been designated as an agent through a financial POA and/or an executor of the estate, each of these responsibilities have the requirement of fiduciary obligations. Meaning the agent has a legal responsibility to act in the principal’s best interests and as an executor they have a legal responsibility to act in the estate and their beneficiaries’ best interests.
Heiser, K. (2019, June 13). When does a power of attorney designation end? Retrieved June 29, 2021, from https://www.agingcare.com/articles/poa-valid-after-elderly-parent-dies-146620.htm
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