A Power of Attorney (POA) is a vital instrument that allows an individual (the principal) to designate another person or entity (the agent) to make decisions on their behalf. When dealing with estate planning in New Hampshire, grasping the duration and termination of a POA is of utmost importance. The lifespan of a POA primarily depends on its type - whether it's a durable, springing, limited, or medical POA - and the specific terms delineated within the document.
The duration of a Power of Attorney is typically specified within the document:
As per New Hampshire law, the duration of a POA is usually directed by the terms stated within the document itself. This means that the POA can be set to expire on a specific date, upon the occurrence of a certain event, or when the principal becomes incapacitated or dies. These conditions can be defined by the principal during the creation of the POA to fit their specific requirements.
The type of Power of Attorney also impacts its duration:
A firm understanding of the various types of POAs and their respective expiration rules is crucial. Each type of POA has unique characteristics and expiration guidelines.
- Durable Power of Attorney: This type of POA remains in effect even if the principal becomes incapacitated mentally. For instance, if the principal is diagnosed with a serious illness that affects their mental capacity, the durable POA would remain in effect, allowing the agent to make decisions on their behalf. However, like all POAs, it ceases to be effective upon the principal's death.
- Springing Power of Attorney: A springing POA only comes into effect under specific circumstances, usually the principal's incapacitation. For example, if a principal becomes incapacitated because of an accident, the springing POA would spring into action, empowering the agent to make necessary decisions. Once the principal regains capacity, the POA becomes invalid unless otherwise stated in the agreement.
- Limited Power of Attorney: Also known as a special POA, it is utilized for a specific purpose or for a limited period. For example, if a principal is unable to handle certain affairs due to their absence, a limited POA could be used. Once the specific task is completed or the duration is over, the POA automatically ends.
- Medical Power of Attorney: This type of POA permits the agent to make medical decisions for the principal in case they become unable to do so. This POA expires when the principal dies, revokes the POA, or regains the ability to make their own decisions.
A firm understanding of these different types of POAs and their respective expiration rules can assist individuals and their appointed agents to navigate the legal landscape of power of attorney in New Hampshire more efficiently.
Revocation of a Power of Attorney:
If a principal chooses to revoke a POA before its stated expiration date, they must adhere to certain legal procedures under New Hampshire law. Revoking a POA isn't as straightforward as deciding one day that the agreement is over. It requires a proper understanding of legal procedures to ensure all responsibilities are correctly terminated.
- The principal must draft a written notice of revocation. This document should include the principal's name, the agent's name, and the date the original POA was executed. This document must be signed and dated by the principal.
- The principal should then deliver this revocation notice to the agent. This can be done in person or through certified mail with return receipt requested, to ensure proof of delivery. It is also advised to notify any third parties (like banks or other financial institutions) that may have been dealing with the agent under the authority of the POA.
Once these steps are completed, the revocation is generally effective immediately, and the agent no longer has the authority to act on behalf of the principal. However, in some cases, such as with a durable POA, the principal may need to record the revocation at the local county recorder's office where the original POA was filed.
It's important to note that if the principal is mentally incapacitated, they cannot legally revoke a POA. In such a case, a court may need to intervene to validate the revocation. If you are considering revoking a POA, it's always recommended to consult with an experienced lawyer to guide you through the process in compliance with New Hampshire law.
Power of Attorney after the principal's death:
Upon the principal's death, the POA generally becomes null and void. The agent doesn't have the authority to manage the deceased's estate. This responsibility falls to the executor named in the deceased's will or to the administrator appointed by the probate court if no will exists.
The executor or administrator's role begins upon the principal's death, whereas the agent's role ends. The executor or administrator is responsible for gathering the deceased's assets, paying off any debts or taxes, and distributing the remaining assets to the beneficiaries as specified in the will, all under the supervision of the probate court.
Trustees, on the other hand, are individuals or entities appointed to manage a trust established by the principal. Unlike a POA or executor, a trustee's role doesn't necessarily end with the death of the principal. Instead, their responsibilities continue as defined in the terms of the trust agreement, which may include distributing the trust's assets to beneficiaries.
In some instances, the agent may also be named as the executor or trustee. In such cases, their responsibilities could extend beyond the principal's death, but their role changes. As an executor or trustee, they are no longer acting under the authority of the POA but under the authority of the will or trust agreement.
