¶ 
Terms
- The term of a Power of Attorney and term of authority or appointment of an agent are different
- Obligations and entitlements may arise before performance of substantive tasks
- A Power of Attorney may survive the incapacity of the principal
- A special word about Florida
¶ Key Terms
Make this page just about term as in lifespan
Key terms of a Power of Attorney, include the terms governing:
- the lifespan of a Power of Attorney
- the term of appointment of an agent
- the terms of authority applicable in respect of an agent
These terms are fundamental to any Power of Attorney.
Unless terms provide otherwise, it is generally assumed that:-
- a Power of Attorney is intended to be become effective upon the principal upon being properly executed by the principal
- an Power of Attorney is intended to be become effective upon the principal upon being properly executed by the principal
There is a distinction between:-
- the period between when a Power of Attorney is signed by the principal to termination of the Power of Attorney (i.e. the ‘lifespan’ of the Power of Attorney)
- the period within the ‘lifespan’ of a Power of Attorney that an agent is eligible to be appointed as an agent (i.e. ‘term of appointment’)
In simpler Powers of Attorney, nothing is made of these concepts and the Power of Atrorney works to permit an agent to be appointed throughout the lifespan of the Power of Attorney and the Power of Attorney simply begins when it is signed and ends when it is revoked.
¶ Illustrative Examples
The following examples illustrate the notion of a ‘term’ in this context in different ways.
¶ Example 1 - Simple Arrangement
Imagine a Power of Attorney under which an agent is authorized to perform a certain task at all times that the Power of Attorney is on foot, that is from the time that the Power of Attorney is signed by the principal (following the agent accepting appointment) to when the Power of Attorney terminates.
This is the simplest possible arrangement, because it does not involve notions like ‘term of appointment’ or ‘term of authority’ because at all times during the ‘lifespan’ of the Power of Attorney, the agent is authorized to perform the relevant tasks.
¶ Example 2 - Term of Authority
Consider a Power of Attorney under which three (3) agents are appointed, each with different expertise, the purpose of their appointment being to achieve a particular objective, such as an architect, builder and interior designer who are appointed as agents to create a house.
Notwithstanding that all three (3) agents have the same term of appointment, their respective terms of authority are different, because the architect would perform tasks before the builder and in turn, the interior designer would perform tasks after the builder.
¶ Example 3 - Term of Appointment
Consider a Powers of Attorney under which:-
- two (2) agents are authorized to accept appointment and perform certain tasks within 8 weeks of the date that the principal signs the Power of Attorney and which provides that 8 weeks from the date that the principal signs the Power of Attorney their appointment or right to be appointed terminates
- eight (8) weeks from the date that the principal signs the Power of Attorney another agent may accept appointment and thereafter, perform certain tasks
In this example, the term of the Power of Attorney (i.e. its lifespan) is very different from the term of each agent’s appointment. Notably, the third agent’s appointment commences after the appointment of the first two agents.
¶ Obligations And Entitlements May Arise Before Performance Of Substantive Tasks
Distinctions of the kind illustrated by examples above may for example, be relevant in the context of obligations owed by an agent and entitlements of an agent.
Taking the three (3) examples above, consider that:-
- if a Power of Attorney provided that an agent was entitled to certain benefits (i.e. contribution to day-to-day expenses such as residential, education, transport or other living costs):
- in Example 1, it seems easier to suggest this would be an obvious entitlement than say, in respect of the third agent in Example 3
- in Example 2, there may be uncertainty about these entitlements on the part of the third agent (i.e. the interior designer) after they accept appointment and before the plans for the house have been prepared by the architect, or the house erected by the builder.
- if a question arose with respect to discharge by an agent of their duties:-
- in Example 1, the issues would be straightforward
- in Example 2, there may be questions as to what duties the ‘last in time’ agent (i.e. the interior designer) owe before they are put in a position to perform their tasks as a consequence of at least the architect performing their work
- in Example 3, there seems little doubt that the ‘last in time’ agent could not reasonably be said to owe any duties to the principal prior to accepting appointment
¶ Acceptance of Appointment Where Agent’s Appointment or Effectiveness of Power of Attorney Deferred
Where a Power of Attorney provides for an agent to be appointed from a future point in time, perhaps for a fixed period, care should be taken to address the question of when an agent may accept appointment.
It might for example, be recognized whether an agent may accept appointment before that time, or otherwise if that be preferred.
This issue is also pertinent here a Power of Attorney provides for a Power of Attorney to become effective at a future point in time.
Care should be taken to avoid any doubt as to when an agent may accept appointment and the effectiveness of any earlier acceptance of appointment, that is, prior to the Power of Attorney becoming effective.
Potentially, the latter is more problematic.
A real question may arise as to whether it is possible for an agent to accept appointment before a Power of Attorney has become effective.
It is invariably best for the principal to manage these kinds of issues in their own, preferred terms.
¶ A Power of Attorney May Survive The Incapacity Of The Principal
There is a page of this Wiki devoted to Powers of Attorney that survive the incapacity of the principal.
It is sufficient in this context to affirm that a durable Power of Attorney survives the incapacity of the principal.
Briefly:
| New York, Illinois and Pennsylvania | Legislation provides that a Power of Attorney is assumed to be durable unless the Power of Attorney provides otherwise (see NY §5-1501A; IL §2-5; PA §5601.1). |
| California, Texas and Florida | Legislation requires certain words to be included in a Power of Attorney to be effective if the principal loses capacity (see CA §4018; TX §751.0021; FL §709.2104). |
¶ A Special Word About Florida
Some of the concepts above in respect of a Power of Attorney for a person[1] may be qualified by legislation.
For example, in Florida:-
- a Power of Attorney for a person[2] that becomes effective at a future point in time is prohibited (see §709.2108(3))
- depending upon the meaning of the expression “becomes effective” in §709.2108(3) it may not be possible for example, to create a Power of Attorney in Florida of some of the kinds illustrated in the examples above
Being not a Power of Attorney excluded from the ambit of the legislation - click here to read more. ↩︎
Ibid. ↩︎