Also known as: power of attorney · power-of-attorney · POA
Written by attorneys · grounded in primary & secondary sources — see below
A written instrument by which a principal grants an agent authority to perform specified acts on the principal's behalf. The instrument supplies the agent's capacity and authority to execute deeds and other documents affecting property when the principal is unavailable. A durable power of attorney continues in effect despite the principal's later incapacity.
Paula Pierce, the record owner of a commercial lot, executed a power of attorney authorizing Pedro Pacheco to convey the parcel. Pedro signed and delivered the warranty deed to the buyer at closing. The deed transferred valid title because Pedro acted as an attorney-in-fact under a power of attorney that supplied the required authority.
Pamela Phillips granted Phuong Pham a power of attorney to manage investment accounts. After Pamela suffered a stroke that left her unable to communicate, Phuong continued to direct trades and pay bills. The power remained effective because it was durable and therefore not terminated by the principal's incapacity.
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Paul Prentice granted Patricia Price a durable power of attorney that expressly authorized trust amendments. After Paul became incapacitated, Patricia executed an amendment altering distribution provisions. The amendment was valid because the power of attorney supplied the required express authority.
Peter Patel executed a durable power of attorney authorizing his daughter to sell his rental house. After Peter suffered incapacity, the daughter negotiated and closed the sale. Title passed because the durable instrument continued to supply authority for the conveyance.
Pedro Pacheco held a durable power of attorney from his incapacitated father that expressly authorized trust amendments. Pedro petitioned to modify an irrevocable trust to reflect changed family circumstances. The court approved the modification because the power of attorney expressly granted the required authority.
Phyllis Porter granted her son a durable power of attorney over brokerage accounts. After Phyllis lost capacity, the son rebalanced the portfolio and paid taxes. The transactions remained authorized because the durable power continued despite the principal's incapacity.
A power of attorney is durable when the instrument expressly provides that it is not terminated by the principal's incapacity. The Uniform Probate Code defines durable in exactly those terms. Without that language the power ends upon incapacity.
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An attorney-in-fact acting under a valid power of attorney is expressly authorized to execute deeds and other closing documents. The governing rule lists the attorney-in-fact among the persons whose signature satisfies the requirement of authority. Execution by an unauthorized person renders the deed void or voidable.
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An agent may exercise a settlor's power to modify or revoke a trust only to the extent the power of attorney expressly authorizes that action. The Uniform Trust Code imposes this express-authorization requirement. Broader or implied authority is insufficient.
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A parent or guardian may delegate powers regarding care or custody of a minor by power of attorney for a period not exceeding six months. The delegation cannot include consent to marriage or adoption. The authority is strictly limited by statute.
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…means as well: "[N]early all states expressly disapprove of suicide and assisted suicide either in statutes dealing with durable powers of attorney in health-care situations, or in living will' statutes. In addition, all states provide for the involuntary commitment of persons who may harm themselves as the result of mental illness,…