When Does a Power of Attorney End?

This article explains the steps for revoking a financial power of attorney, then discusses other circumstances under which a power of attorney may terminate or expire, including:

• the unavailability of an agent
• death
• divorce
• the appointment of a conservator or guardian, or
• the unlikely event that a court invalidates the POA.

Revoking a Power of Attorney

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 power of attorney revocation form, sign it in front of a notary public, and give copies to the agent and to people or institutions with whom the agent has been dealing.

Who Can Revoke a POA

Only you, or someone a court appoints to act for you as discussed above, can revoke your power of attorney.

You can revoke a durable power of attorney as long as you are of sound mind and physically able to do so. The sound mind requirement is not difficult to satisfy. If someone challenged the revocation, a court would look only at whether or not you understood the consequences of signing the revocation.

When to Revoke a POA

If you've prepared a power of attorney that won't be used unless you're incapacitated, years may elapse between the time you sign the durable power of attorney and when it is put to use. During that interval—or even after your attorney-in-fact starts using the document, as long as you are mentally competent—you may decide you need to revoke the durable power of attorney. Here are the most common reasons to revoke a power of attorney and start fresh.

Changing the terms. There is no accepted method for amending a power of attorney. If you want to change or amend a durable power of attorney, the safe course is to revoke the existing document and prepare a new one. Don't go back and modify your old document with a pen or by any other method—you could throw doubt on the authenticity of the whole thing.

Choosing a new agent. Similarly, you should revoke your power of attorney if you change your mind about your choice of attorney-in-fact. If you create a durable power of attorney that won't be used until later, your attorney-in-fact may not be available when the power of attorney is eventually needed. Or you may simply change your mind. If that's the case, you can revoke the durable power of attorney before it is ever used.

Moving to another state. If you move to another state, it's best to revoke your old durable power of attorney, as described below, and make a new one that meets your state’s rules. This is true even if your old power of attorney is acceptable under your new state's laws. If you don't make a new document, your attorney-in-fact may run into problems that are more practical than legal. For example, the document may need to be recorded with the local land records office in the new state. If the document does not meet certain requirements, the recorder's office in the new state may not accept it. Creating a new document will ensure that things proceed smoothly for your attorney-in-fact.

Losing the document. If you lose your signed power of attorney, it's smart to officially revoke it, destroy any copies, and make a new one. Most people won't accept your agent's authority without seeing the document. By revoking the lost version, you lower the risk of confusion if the old document ever turns up.

Marrying or divorcing. If you get married after making a durable power of attorney, you may want to name your new spouse as your agent. If you later divorce, it's usually best to revoke the old power of attorney and make a new one with a different agent. In some states, your ex-spouse is automatically removed as agent, and any alternate you named takes over. Still, it's a good idea to create a new document that doesn't mention your former spouse and lets you choose a new alternate agent.

How to Revoke a Power of Attorney

There are two ways to revoke your power of attorney. You can:

• prepare and sign a document called a notice of revocation, or
• destroy all existing copies of the document.

The first method is best because it provides proof that you have revoked the power of attorney. Some states allow you to revoke simply by creating a new document, but it's still advisable to fill out a separate revocation form and notify everyone who needs to know about the change.

Signing, Notarizing, and Witnessing the Notice of Revocation

You need to sign and date your power of attorney revocation form. It doesn't have to be witnessed, but having a witness can be helpful if you think someone might question your mental capacity later. You must sign the notice in front of a notary public.

Recording the Notice of Revocation

If you recorded the original power of attorney at your local recorder of deeds office, you must also record the revocation. But even if the original durable power of attorney was not recorded, you can record a revocation if you fear that the former attorney-in-fact might try to act without authorization. If the revocation notice is part of the public records, people who check those records in dealing with the real estate later will know that the former agent is no longer authorized to act on your behalf.

Telling Others You’ve Revoked Your Power of Attorney

Signing or recording a revocation isn't enough for it to take effect. You also need to tell your former agent and anyone who has worked with them. Make sure each person or institution receives a copy of the revocation form.

Who needs to know? When you're ready to send out revocation notices, try to think of everyone with whom the attorney-in-fact has had, or may have, dealings. These may include:

• banks
• mortgage companies
• title companies
• stockbrokers
• insurance companies
• Social Security offices
• Medicare or Medicaid offices
• military or civil service offices
• the IRS
• pension fund administrators
• post offices
• doctors
• schools
• relatives
• business partners
• landlords
• lawyers
• accountants
• real estate agents, and
• maintenance and repair people.

If you don't give written notification, people or institutions who don't know you’ve revoked the power of attorney might still enter into transactions with your former agent. If they act in good faith, they are legally protected, and you could be held responsible for your agent's actions even after revoking their authority. It’s your responsibility to ensure that everyone is aware that you've revoked the power of attorney.

Other Reasons a POA May Not Last

Generally, a durable power of attorney for finances remains valid until you revoke it, you die, or there is no one to serve as your attorney-in-fact. In a few states, the POA may end if you divorce.

A financial POA that is not durable will end if you become incapacitated or if you set a clear expiration date in the document, in addition to the events mentioned above.

A court can also invalidate any type of power of attorney, but that happens very rarely.

No Attorney-in-Fact Is Available

A power of attorney must end if there's no one to serve as the attorney-in-fact or agent. To avoid this, you can name alternate agents, 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.

Incapacity or Death

A durable power of attorney for finances will not expire if you become incapacitated; that’s the point of making the document. If you make a financial POA that’s not durable, it will end if you no longer have the mental capacity to make your own decisions.

Any financial power of attorney will end upon the death of the person who made the document. 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.

Because a durable power of attorney ends at death, you shouldn’t use it to give your agent the authority to wind up your affairs after you die. Put those instructions in your will—and in your living trust, if you make one.

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.

When a Court Appoints a Conservator or Guardian

If your attorney-in-fact is satisfactorily handling your financial affairs, it's very unlikely that a court will need to appoint a conservator for you. And you can use your power of attorney to name your attorney-in-fact to the post, if a conservatorship is ever needed.

If, however, you or a family member objected to your agent’s actions, a court might appoint someone else as conservator. 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 can revoke your durable power of attorney if they don’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.

In some states, someone a court appoints to take physical care of you—usually called a guardian or guardian of the person—may also have the power to revoke a financial power of attorney.

Can a Durable POA Be Invalidated?

It's rare, but a durable power of attorney could be ruled invalid if a judge concludes that you were not mentally competent when you signed the document or that you were the victim of fraud or undue influence. A court could also invalidate a power of attorney 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.

More Information About Durable Powers of Attorney for Finances

To learn more about durable financial powers of attorney, see the following articles:

• When Does a Durable Power of Attorney Take Effect?
• What Powers Can a Financial Power of Attorney Include?
• Attorney-in-Fact: Meaning, Powers, and Responsibilities
• Choosing an Attorney-in-Fact

You can learn more about making WillMaker’s durable power of attorney for finances in WillMaker’s Legal Manual.