When someone passes away, it’s important to understand what happens to their Power of Attorney. A Power of Attorney (POA) is a legal document that gives someone else the authority to make decisions on your behalf. However, this authority ceases to exist upon the death of the individual who granted it. Let’s explore in more detail what happens to the Power of Attorney when someone dies.
What is the Power of Attorney?
A POA is a legal document that allows you to appoint someone you trust to make decisions on your behalf if you become unable to make them yourself. There are different types of Power of Attorney, including:
- General POA (GPA): This allows someone to make financial and legal decisions on your behalf for a specified period, such as when you are overseas or unable to manage your affairs, but is not effective if you have lost mental capacity. A GPA does not have to be registered with the Office of the Public Guardian (OPG).
- Lasting POA (LPA): This gives someone the authority to make decisions about your finances, health, and welfare if you lack mental capacity. Before an LPA can be used it must be registered with the OPG (we can do this for you).
What Happens to the Power of Attorney When Someone Dies?
When the person who granted the Power of Attorney dies, the authority granted by the document ends. The appointed attorney no longer has the legal authority to act on behalf of the deceased person. If you have a registered LPA then the OPG must be informed and the LPA must be returned to them for cancellation.
Executor of the Will
After someone dies, the Executor of their Will takes over the responsibility for managing their estate. The Executor is usually named in the Will and is responsible for distributing the deceased person’s assets according to their wishes. If there is no Will, the law (called ‘Intestacy’) determines who should administer the estate.
Probate
Probate is the legal process of administering the estate of a deceased person. It involves proving that the Will is valid, gathering the deceased person’s assets, paying any debts and taxes, and distributing the remaining assets to the beneficiaries.
If the deceased person had a Will, the Executor named in the Will is responsible for applying for probate. If there is no Will, the next of kin can apply to become the Administrator of the estate.
What if the Attorney is also the Executor?
It’s not uncommon for the person appointed as Power of Attorney to also be named as the Executor of the Will. In this case, their authority as Power of Attorney ends upon the death of the individual, but they can continue to act as the Executor of the Will.
Can the Power of Attorney be Revoked Before Death?
Yes, the person who granted the POA can revoke it at any time, as long as they have the mental capacity to do so. They can do this by informing their attorney in writing that they wish to revoke the Power of Attorney. If an LPA then the OPG must be informed as well.
What Happens if There is No Power of Attorney?
If someone loses mental capacity and does not have a Power of Attorney in place, it can cause difficulties for their loved ones. Without a POA, their family may need to apply to the Court of Protection to be appointed as a Deputy. This can be a lengthy and expensive process, so it’s essential to have a Power of Attorney in place before it’s needed.
Conclusion
In conclusion, when someone dies, their Power of Attorney comes to an end, and the appointed attorney no longer has the authority to act on their behalf. The Executor of the Will takes over the responsibility for managing the deceased person’s estate, and if there is no Will, the next of kin can apply to become the Administrator of the estate. It’s essential to have a POA in place to ensure that your affairs are taken care of if you become unable to manage them yourself.
Here at The Will Centre, we can provide you with expert, specialised advice on your current Power of Attorney or on putting one in place. For more information, click here.
