¶ 
Termination
- Termination refers to a Power of Attorney coming to an end
- The principal losing capacity may or may not terminate a Power Of Attorney
- Upon termination some rights, entitlements and obligations may continue
- A Power of Attorney terminates upon revocation by the principal
- A Power of Attorney may terminate for reasons specified in legislation
- A Power of Attorney terminates upon fulfilment of its purpose
- A Power of Attorney may terminate for reasons specified in the Power of Attorney
- Termination may occur only as against the agent
- Some states permit agents to verify relevant facts
- Other Legislation May Affect The Position
- REFERENCES
- California - Texas - New York
- Florida - Illinois - Pennsylvania
INSERT TERMINATION BY EXECUTION OF FURTHER POA WHERE TERMINATION UNDER LEGISLATION
¶ Termination Refers To A Power of Attorney Coming To An End
Unless a Power of Attorney specifies when it terminates, a Power of Attorney terminates:-
- upon being revoked by the principal
- upon its purpose being fulfilled
- where the principal is a person:-
- when the principal dies
- in the event that the principal loses capacity to manage relevant affairs (depending upon the terms of the Power of Attorney and any relevant legislation)[1]
- when circumstances transpire that legislation prescribes to result in termination[2]
- where the principal is a commercial entity, if and when the principal ceases to exist, or perhaps enters liquidation or similar[3]
¶ The Principal Losing Capacity May Or May Not Terminate A Power Of Attorney
In respect of a Power of Attorney for a person, loss of capacity on the part of the principal may or may not terminate a Power of Attorney.
An overly general account of how Powers of Attorney for persons work might be:-
- durable Powers of Attorney are not “terminated” by the principal losing capacity; and
- non-durable Powers of Attorney are “terminated” by the principal losing capacity
This is an overly general account because a Power of Attorney for a person[4] may or may not terminate if the principal loses capacity, depending upon the contents of the relevant Power of Attorney, relevant legislation and other prevailing circumstances.
Notably, in respect of a Power of Attorney for a person[5] in the Six (6) Greater States:-
-
in California, a non-durable Power of Attorney for a person[6] is terminated by the principal losing capacity (see §4155)
-
in Texas, there is no legislation prescribing that a Power of Attorney is terminated by the principal losing capacity[7]
-
in New York, a Power of Attorney:-
- for a person[8] that does not expressly provide that it is terminated by the incapacity of the principal is durable (see §5-1501A)
- that is not durable, terminates when the principal becomes incapacitated (see §5-1511)[9]
-
in Florida, a Power of Attorney for a person[10] terminates if the Power of Attorney is not durable and the principal loses capacity (see §709.2109)
-
In Illinois, §2-5 provides that unless a Power of Attorney for a person[11] provides otherwise, it continues until the death of the principal, notwithstanding incapacity of the principal
-
in Pennsylvania:-
- a mandatory notice§5601 attached to all Powers of Attorney for a person[12] includes the words “Your agent may exercise the powers given here throughout your lifetime, even after you become incapacitated, unless you expressly limit the duration of these powers”
- §5604 states in respect of a Power of Attorney for a person[13] that “… unless [a] Power of Attorney states a time of termination, it is valid notwithstanding the lapse of time since its execution…”
¶ Illustration By Example
Imagine a Power of Attorney[14] under which an agent is authorized to perform certain tasks at any time during any period between now and say, 31 December 2035 that the principal had capacity.[15]
It follows that:-
- in California, the Power of Attorney could not be created because §4155 would terminate the Power of Attorney upon the principal losing capacity (see §4155)
- in New York, the Power of Attorney would be deemed a durable Power of Attorney despite being a non-durable Power of Attorney in the traditional sense
- in Florida, the Power of Attorney could not be created because §709.2109 would terminate the Power of Attorney upon the principal losing capacity
- in Texas, Illinois and Pennsylvania, the Power of Attorney could be created
¶ Temporary Loss Of Capacity
Interesting issues may arise where the principal temporarily loses capacity, for example during a coma, period of mental illness or unconsciousness etc.
In California for example, in respect of a Power of Attorney for a person:[16]
- §4152 states “…a power of attorney is terminated by … incapacity of the agent, except that a temporary incapacity suspends the agent’s authority only during the period of the incapacity…”
- §4155 (cited above) simply provides that a Power of Attorney terminates if the principal loses capacity
Nonetheless, California has adopted a sophisticated definition of incapacity in §811 which includes:
“In determining whether a person suffers from a deficit in mental function so substantial that the person lacks the capacity to do a certain act, the court may take into consideration the frequency, severity, and duration of periods of impairment…”
In New York in respect of a Power of Attorney for person:-
- “incapacitated” means “to be without capacity”: §1501
- "capacity"is defined as “ability to comprehend the nature and consequences of the act of executing and granting, revoking, amending or modifying a power of attorney, any provision in a power of attorney, or the authority of any person to act as agent under a power of attorney”: §1501
- as noted above:-
- for a person[17] that does not expressly provide that it is terminated by the incapacity of the principal is durable (see §5-1501A)
- that is not durable, it terminates when the principal becomes incapacitated (see §5-1511)[18]
It follows that in New York, a Power of Attorney that provides it terminates upon the loss of capacity of the principal might upon a literal construction of the legislation, operate to terminate a Power of Attorney upon any loss of capacity of the principal, including temporary loss of capacity.
A lawyer in New York could explain for example, whether common law informs of an objective approach to interpreating the legislation, supporting a Power of Attorney not terminating in the event of temporary incapacity.
¶ Upon Termination Some Rights, Entitlements And Obligations May Continue
Upon termination:-
- most rights, entitlements and obligations as between principal and agent under a Power of Attorney are fundamentally concluded
- some obligations or entitlements may continue, for example:-
- an obligation on the part of the principal to pay any unpaid remuneration or expenses due to an agent
- the obligations of an agent to:-
The ‘bringing to an end’ of a Power of Attorney seems to involve three stages:-
| Initiation | Agents cease to be able to perform the tasks forming the purpose of the Power of Attorney, cease to be obliged to comply with directions etc. |
| Finalisation | Remuneration and expense entitlements due to agents are finalised, records and accounts delivered to the principal etc. |
| Exhaustion | At all times, a Power of Attorney remains a source of enforceable obligations as against an agent including after termination when liabilities might attach to an agent, if an agent has breached a duty to avoid conflicts of interest, retain information confidentially or similar. |
¶ Partially Completed Transactions
Interesting issues can arise with respect to what an agent may or must do, after a Power of Attorney terminates.
For example, if an agent had partly completed a transaction on behalf of the principal at the time of termination:-
- if the principal could not complete the transaction for themselves, an agent might perceive their fiduciary duty to require them to complete the transaction
- if the principal was capable of completing the transaction for themselves, an agent might see fit to merely ensure that the principal has all information and documents required to permit the principal to protect their interests
This kind of situation might be tenuous if for example, the principal lacked capacity.
An agent may have reservations about completing the transaction, because:-
- it may result in the agent somehow being found liable in some way and in difficulty asserting any entitlement to indemnity in respect of those liabilities from the principal
- the agent may find that notifying any claim for indemnity from the principal in this instance, or being involved in the response to that claim as an agent of the principal raises impossible conflicts
¶ Comparison With Declaration a Power of Attorney Is Void Ab Initio
A Power of Attorney terminating is different to a Power of Attorney being declared to be ‘void ab initio’.
When a Power of Attorney terminates:-
- certain rights and obligations cease and questions may flow for example, as to whether those rights and obligations were discharged in the past, how they were discharged and similar
- questions about ‘rights and obligations’ arising after termination may sound in liabilities on the part of an agent or the principal
If a Power of Attorney is declared to be ‘void ab initio’:-
- it is treated as if never existed
- consequently, questions cannot arise about obligations owed by an agent, fiduciary duties, entitlements of an agent or similar
This means for example, that if a Court declared a Power of Attorney obtained under duress to be void ab initio, questions like whether the purporting agent has breached a fiduciary duty or a principal is required to pay entitlements to a purporting agent would not arise.
¶ A Power of Attorney Terminates Upon Revocation By The Principal
The term “revoke” refers to the principal taking the steps necessary to bring a Power of Attorney to an end.
Before properly executing a Power of Attorney, consideration should be given to the content of any other Powers of Attorney in existence and the need or otherwise to revoke any such Powers of Attorney.
In California, §4151 provides in respect of a Power of Attorney for a person:[19]
"A Power of Attorney is terminated by any of the following events:
(1) In accordance with the terms of the Power of Attorney.
(2) Extinction of the subject or fulfillment of the purpose of the Power of Attorney.
(3) Revocation of the attorney-in-fact’s authority, as provided in §4153."
§4153 provides in respect of a Power of Attorney for a person:[20]
"(a) The authority of an attorney-in-fact under a Power of Attorney may be revoked as follows:
(1) In accordance with the terms of the Power of Attorney .
(2) Where the principal informs the agent orally or in writing that the agent’s authority is revoked or when and under what circumstances it is revoked. This paragraph is not subject to limitation in the power of attorney.
(3) Where the principal’s legal representative, with approval of the court as provided in Section 4206, informs the attorney-in-fact in writing that the attorney-in-fact’s authority is revoked or when and under what circumstances it is revoked…"
Anyone revoking a Power of Attorney in Californai would be mindful of §1216 of the Civil Code, whicb provides:
“No power contained in an instrument to convey or execute instruments affecting real property which has been recorded is revoked by any act of the party by whom it was executed, unless the instrument containing such revocation is also acknowledged or proved, certified and recorded, in the same office in which the instrument containing the power was recorded.”
Useful Extracts from the California Law Revision Commission Report
The 1994 California Law Revision Commission Report which led to enactment of Division 4.5 of the Probate Code stated in respect of §4151:
"Section 4151 is new. This section provides for revocation of the Power of Attorney in its entirety, as distinct from revocation or termination of the authority of the… [agent] pursuant to Section 4152 or 4153. This section recognizes that a Power of Attorney may, for example, contain expressions of wishes, may nominate a conservator, or name a successor… [agent]. These provisions may exist independent from the provisions granting authority to the… [agent]. Revocation under this section revokes all provisions stated in the instrument, rather than modifying or terminating the authority of the… [agent]. The rule in subdivision (a)(2) permitting revocation of a Power of Attorney by a writing executed by the principal acts as an escape hatch and is not subject to limitation in the Power of Attorney. See Section 4101(b) (exception to priority of provisions of Power of Attorney)."
In respect of §4153 the 1994 California Law Revision Commission Report stated:
"Section 4153 is new. The rules concerning revocation of the attorney-in-fact’s authority by the principal are not as strict as the rules on modification of the power of attorney. Compare subdivision (a)(2) with Section 4150(a)(2). No writing is required to revoke the attorney-in-fact’s authority, and if a writing is used, it need not be witnessed or notarized to be effective between the principal and attorneyin-fact…"
In Texas, in respect of a Power of Attorney for a person:[21]
- revocation is mentioned in:-
- legislation says nothing about methods by which a Power of Attorney may be revoked
In New York:-
§5-1511 provides in respect of a Power of Attorney for a person:[22]
"3. A principal may revoke a power of attorney:
(a) in accordance with the terms of the power of attorney; or
(b) by delivering a revocation of the power of attorney to the agent in person or by sending a signed and dated revocation by mail, courier, electronic transmission or facsimile to the agent’s last known address. The agent must comply with the principal’s revocation notwithstanding the actual or perceived incapacity of the principal unless the principal is subject to a guardianship under article eighty-one of the mental hygiene law."
§5-1501B provides in respect of a Power of Attorney for a person:[23]
"3. A principal may revoke a power of attorney:
(a) in accordance with the terms of the power of attorney; or
(b) by delivering a revocation of the power of attorney to the agent in person or by sending a signed and dated revocation by mail, courier, electronic transmission or facsimile to the agent’s last known address. The agent must comply with the principal’s revocation notwithstanding the actual or perceived incapacity of the principal unless the principal is subject to a guardianship under article eighty-one of the mental hygiene law."
In Florida, §709.2110 provides in respect of a Power of Attorney for a person:[24]
“(1) A principal may revoke a power of attorney by expressing the revocation in a subsequently executed power of attorney or other writing signed by the principal. The principal may give notice of the revocation to an agent who has accepted authority under the revoked power of attorney.”
In Illinois, in respect of a Power of Attorney for a person:[25]
- §2-5 provides “..the principal may specify in the agency the event or time when the agency will begin and terminate, the mode of revocation or amendment and the rights, powers, duties, limitations, immunities and other terms applicable to the agent and to all persons dealing with the agent…”
- there are various references to revocation in the legislation such as in the context of agents or successor agents verifying a Power of Attorney has not been revoked (see §2-8, §2-10.3 and §2-10.5)
In Pennsylvania, in respect of a Power of Attorney for a person:[26]
- revocation is mentioned in §5605 (re good faith reliance), §5606 (agents verifying a Power of Attorney has not been revoked) and for example §5608 speaks of termination and good faith reliance by athird party
- legislation says nothing about methods by which a Power of Attorney may be revoked
¶ Irrevocable Powers of Attorney
Unless a Power of Attorney contains a provision to the effect that the Power of Attorney is irrevocable, a Power of Attorney may be revoked by the principal at will.
¶ Revocation By Executing A Fresh Power of Attorney
Most of the Six (6) Greater States have legislated about the effect or possible effect upon a Power of Attorney of executing a subsequent Power of Attorney.
In California §4130 provides in respect of a Power of Attorney for a person:[27]
“…if a principal grants inconsistent authority to one or more attorneys-in-fact in two or more powers of attorney, the authority granted last controls to the extent of the inconsistency…”
In Texas, legislation in respect of durable Powers of Attorney[28] appears to say nothing about this issue.
In New York, §5-1511 provides in respect of a Power of Attorney for a person:[29]
“The execution of a Power of Attorney does not revoke any Power of Attorney previously executed by the principal…”
§709.2110 in Florida provides in respect of a Power of Attorney for a person:[30]
"(1) A principal may revoke a power of attorney by expressing the revocation in a subsequently executed power of attorney or other writing signed by the principal. The principal may give notice of the revocation to an agent who has accepted authority under the revoked power of attorney.
(2) Except as provided in subsection (1), the execution of a power of attorney does not revoke a power of attorney previously executed by the principal."
§2-5 in Illinois provides in respect of a Power of Attorney for a person[31] “..the principal may specify in the agency the event or time when the agency will begin and terminate, the mode of revocation or amendment and the rights, powers, duties, limitations, immunities and other terms applicable to the agent and to all persons dealing with the agent…”
In Pennsylvania, legislation in respect of a Power of Attorney for a person[32] appears to say nothing about this issue.
¶ A Power of Attorney May Terminate For Reasons Specified In Legislation
Four (4) of the Six (6) Greater States have legislation governing Powers of Attorney for a person[33] that specifies that a Power of Attorney terminates in certain circumstances, being a reference to termination of either the Power of Attorney itself or termination as against an agent.
These ‘terminating events’ in the legislation governing Powers of Attorney for a person[34] are summarized in this Summary Table - Legislation Grounds For Termination.
They include: fulfilment of purpose, revocation by the principal, death of the principal, removal of an agent, resignation of an agent, incapacity of an agent, divorce as between principal and agent, death of an agent, incapacity of principal, appointment of guardian, the Power of Attorney providing for termination, no other agent being available or by virtue of a Court order and termination by virtue of execution of a subsequent Power of Attorney where applicable under legislation.
It might be noted that in California, §4152 only speaks about termination as against the agent in contexts that other states may talk about termination of the Power of Attorney, as illustrated by the Summary Table - Legislation Grounds For Termination.
The Summary Table - Legislation Grounds For Termination shows where many states talk about termination of the Power of Attorney in respect of matters said in California to result in termination as terminating a Power of Attorney as against the agent.
¶ Termination by Virtue of Execution of a Further Power of Attorney
In some of the Six…
¶ A Power of Attorney Terminates Upon Fulfilment Of its Purpose
In four (4) of the Six (6) Greater States, the principle that a Power of Attorney for a person[35] terminates when its purpose is fulfilled is codified (see California §4152, Texas §751.131, New York §5-1511, Florida §709.2109).
In Illinois, termination is dealt with in §2-5 and in Pennsylvania, relevant provisions seem to include §5605 and §5606.
There is no express mention about termination upon the purpose of a Power of Attorney for a person[36] being fulfilled in the legislation of Illinois or Pennsylvania, albeit this principle presumably forms part of the common law in these states.
It might be noted that in California:-
- §4152 states that “the authority of an attorney-in-fact under a power of attorney is terminated by … extinction of the subject or fulfillment of the purpose of the power of attorney”
- whilst this may amount to termination of the Power of Attorney, §4152 only talks about of the authority of the agent being terminated, not termination of the Power of Attorney
- there seems to be a consistent approach to only speak about termination as against the agent in contexts that other states may talk about termination of the Power of Attorney
¶ Case Study - Temporal Nexus Affects Prospects to Fulfil Purpose
Imagine a property developer creates a Power of Attorney authorizing agents to perform certain tasks between departure and return dates for an overseas trip.
Consider that the task they are authorized to perform is “take all steps to promote to completion the development known as …”
Compare that:-
- if the relevant Power of Attorney were given at the end of the development to sell the last two apartments in the block, that would actually seem to be a task capable of being fully completed
- if the Power of Attorney were given in the first year of the development enable an agent take all steps necessary to progress the development towards the final sale of all units there would be no issue about fulfilment of its purpose
This example illustrates how determining whether the purpose of a Power of Attorney could be or has been fulfilled involves examination of all of its terms and surrounding circumstances.
¶ A Power of Attorney May Terminate For Reasons Specified In The Power of Attorney
The principal may specify in a Power of Attorney when it will terminate, for example by reference to a date or the happening of an event or similar.
¶ Termination May Occur Only As Against The Agent
Legislation in respect of a Power of Attorney for a person[37] in three (3) of the Six (6) Greater States deals with both termination of a Power of Attorney and termination of the authority of an agent.
As illustrated in the Summary Table - Legislation Grounds For Termination in respect of a Power of Attorney for a person:[38]
- in California, legislation only speaks in terms of termination of the authority of an agent
- in Texas, New York and Florida, legislation speak both in terms termination of the Power of Attorney itself and an agent’s entitlement to be appointed as an agent
It is interesting to recognize that within the Six (6) Greater States only Texas and Florida speak in their legislation about Powers of Attorney terminating in accordance with its terms and none of the Six (6) Greater States recognize in clear terms in their legislation that an agent may have their office terminated if they breach a condition of their appointment.
Reasons acknowledged in legislation of one or more of the Six (6) Greater States as set out in the Summary Table - Legislation Grounds For Termination include revocation by the principal, resignation of an agent, incapacity or death of an agent, divorce of the agent from the principal and similar.
Notably legislation in Texas (§751.131), New York (§5-1511) and Florida (§709.2109) provides something along the lines that a Power of Attorney terminates if no agent is authorized to exercise authority which means that termination of the authority of an agent may result in termination of the Power of Attorney, if no other agent is eligible and appointed.
In Illinois and Pennsylvania, legislation does not specifically address particular circumstances that result in termination of a Power of Attorney or eligibility of an agent.
¶ Renouncement & Resignation
Note reference in definition durable - where not binding ewtc.
(f) Power to renounce fiduciary position.–
(1) A power “to renounce fiduciary positions” shall mean that the agent may:
(i) renounce any fiduciary position to which the principal has been appointed; and
(ii) resign any fiduciary position in which the principal is then serving, and either file an accounting with a court of competent jurisdiction or settle on receipt and release or other informal method as the agent deems advisable.
(2) The term “fiduciary” shall be deemed to include, without limitation, an executor, administrator, trustee, guardian, agent or officer or director of a corporation.
The concept of renouncement potentially arises in respect of a Power of Attorney for a person[39] of the Six (6) Greater States, albeit not mentioned in the legislation
A basis exists to distinguish between:-
- an agent resigning such that the agent may choose to be re-appointed in the future; and
- an agent giving up their right to be appointed in the future
This may be a fair way to account for the meaning of the term renouncement as distinguished from resignation, renouncement being to give up the right to be appointed.
The distinction between these concepts may be interesting for example where legislation requires an agent who seeks to resign to adopt a certain procedure:-
- would an agent who is renouncing their appointment have to satisfy any regime for an agent who is resigning?
- would an agent need to satisfy any regime to renounce their appointment?
With respect to legislation governing Powers of Attorney for a person:[40]
- in California, a §4152 speaks of resignation of agent and §4207 explains how and when an agent may resign
- in Texas, §751.023 recognizes an agent may resign although the legislation does not contain a prescribed method for resignation
- in New York, §5-1505 sets out a method for resignation
- in Florida, §709.2118 sets out a method for resignation
- in Illinois, §2-10.3 recognizes an agent may resign although the legislation does not contain a prescribed method for resignation
- in Pennsylvania, the concept of resignation of an agent is not referred to in the legislation
¶ Divorce
In each of the Six (6) Greater States, legislation includes provision to the effect that the divorce of an agent from a spouse terminates the appointment of the spouse as an agent, unless perhaps the Power of Attorney provides otherwise.
The relevant provisions are noted in the table below, accepting for example, that California and New York deal with re-marriage, unlike the other four (4) states.
| California | §4154 states “(a) If after executing a power of attorney the principal’s marriage to the attorney-in-fact is dissolved or annulled, the principal’s designation of the former spouse as an attorney-in-fact is revoked… (b) If the attorney-in-fact’s authority is revoked solely by subdivision (a), it is revived by the principal’s remarriage to the attorney-in-fact…” |
| Texas | §751.132(3) states: “…an agent’s authority under a durable power of attorney terminates when… the agent’s marriage to the principal is dissolved by court decree of divorce or annulment or is declared void by a court, unless the power of attorney otherwise provides…” |
| New York | §5-1511 states: “…an agent’s authority terminates when… the agent’s marriage to the principal is terminated by divorce or annulment, as defined in subparagraph two of paragraph (f) of section 5-1.4 of the estates, powers and trusts law , unless the power of attorney expressly provides otherwise. If the authority of an agent is revoked solely by this subdivision, it shall be revived by the principal’s remarriage to the former spouse…”; |
| Florida | §709.2109 states “…an agent’s authority is exercisable until the authority terminates. An agent’s authority terminates when… an action is filed for the dissolution or annulment of the agent’s marriage to the principal or for their legal separation, unless the power of attorney otherwise provides…” |
| Illinois | §2-6 states “…if a court enters a judgement of dissolution of marriage or legal separation between the principal and his or her spouse after the agency is signed, the spouse shall be deemed to have died at the time of the judgment for all purposes of the agency…” |
| Pennsylvania | §5605© states: “…filing a complaint in divorce.–If a principal designates his spouse as his agent and thereafter either the principal or his spouse files an action in divorce, the designation of the spouse as agent shall be revoked as of the time the action was filed, unless it appears from the power of attorney that the designation was intended to survive such an event…” |
In California (§4205) Texas (§751.023(b)) Illinois (§2-10.3) and possibly Pennyslvania (§5602(b)) where a protector may be appointed with authority to designate or appoint successor agents, a prudent principal would need to consider the inclusion of directions in a Power of Attorney dealing with a protector designating a former spouse as a successor agent, for example a direction preventing their appointment, if this be the preference of the principal.
¶ Removal
In respect of a durable Power of Attorney for a person[41]:-
- in California, a §4152 speaks of removal of an agent
- in Texas, Chapter 753 provides a regime for removal of an agent appointed under a durable Power of Attorney
- in New York, §5-1510 speaks of special proceedings to remove an agent "upon the grounds that the agent has violated or is unfit, unable, or unwilling to perform, the fiduciary duties under the Power of Attorney
- in Florida, §709.2108 and §709.2116 speak of removing an agent and the power of a Court to remove an agent
- in Illinois and Pennsylvania, legislation does not mention removal of an agent
¶ Some States Permit Agents To Assume Relevant Facts Or That A Power of Attorney Not terminated
All the Six (6) Greater States, have legislation governing Powers of Attorney for a person[42] that provides along the lines an Affidavit or certificate or similar signed by an agent may conclusively entitle a third party or perhaps an agent to assume that a Power of Attorney has not been terminated by virtue of its revocation or similar.
See: California §4152, §4153, §4304, §4305, §4306 , Texas, §751.055 and §751.134, New York, §5-1511, Florida, §709.2119, in Illinois, §2-10.3 and Pennsylvania, §5606.
Many states have legislation entitling an agent or third party to assume a Power of Attorney for a person[43] is operable if they act in good faith in relying upon the Power of Attorney, which means that for example, where the termination of a Power of Attorney is unknown, it may nonetheless be given effect in some circumstances.
See: California §4304, Texas, §751.054, New York, §5-1511, Florida, §709.2109, in Illinois, §2-8 and Pennsylvania, §5606.
Interestingly in Illinois, the legislation provides for the provision of Affidavits verifying a successor agent or co-agent are suitably authorized or similar (see §2-10.3 and §2-10.5).
¶ Other Legislation May Affect The Position
Some states have passed legislation that may qualify the termination, no other agent of a Power of Attorney, for example §3-501 in New York, which deals with the unknown death of servicemen.
¶ SOME HANDY REFERENCES
¶ California
The mandatory notice in §4128 states “You have the right to revoke or terminate this durable power of attorney at any time, so long as you are competent.”
§4151 recognizes that a principal may only revoke a Power of Attorney in writing and otherwise, in accordance with its terms.
§4151 states:
"(a) A principal may revoke a power of attorney as follows:
(1) In accordance with the terms of the power of attorney.
(2) By a writing. This paragraph is not subject to limitation in the power of attorney.
(b) An attorney-in-fact or third person who does not have notice of the revocation is protected from liability as provided in Chapter 5 (commencing with §4300)."
§4152 states:-
"(a) Subject to subdivision (b), the authority of an attorney-in-fact under a power of attorney is terminated by any of the following events:
(1) In accordance with the terms of the power of attorney.
(2) Extinction of the subject or fulfillment of the purpose of the power of attorney.
(3) Revocation of the attorney-in-fact’s authority, as provided in §4153.
(4) Death of the principal, except as to specific authority permitted by statute to be exercised after the principal’s death.
(5) Removal of the attorney-in-fact.
(6) Resignation of the attorney-in-fact.
(7) Incapacity of the attorney-in-fact, except that a temporary incapacity suspends the attorney-in-fact’s authority only during the period of the incapacity.
(8) Dissolution or annulment of the marriage of the attorney-in-fact and principal, as provided in §4154.
(9) Death of the attorney-in-fact.
(b) An attorney-in-fact or third person who does not have notice of an event that terminates the power of attorney or the authority of an attorney-in-fact is protected from liability as provided in Chapter 5 (commencing with §4300)."
§4155 states:-
"(a) Subject to subdivision (b), the authority of an attorney-in-fact under a nondurable power of attorney is terminated by the incapacity of the principal to contract.
(b) An attorney-in-fact or third person who does not have notice of the incapacity of the principal is protected from liability as provided in Chapter 5 (commencing with Section 4300 )."
§4304 states:-
"(a) The death of a principal who has executed a power of attorney, whether durable or nondurable, does not revoke or terminate the agency as to the attorney-in-fact or a third person who, without actual knowledge of the principal’s death, acts in good faith under the power of attorney. Any action so taken, unless otherwise invalid or unenforceable, binds the principal’s successors in interest.
(b) The incapacity of a principal who has previously executed a nondurable power of attorney does not revoke or terminate the agency as to the attorney-in-fact or a third person who, without actual knowledge of the incapacity of the principal, acts in good faith under the power of attorney. Any action so taken, unless otherwise invalid or unenforceable, binds the principal and the principal’s successors in interest."
§4305 states:-
"(a) As to acts undertaken in good faith reliance thereon, an affidavit executed by the attorney-in-fact under a power of attorney, whether durable or nondurable, stating that, at the time of the exercise of the power, the attorney-in-fact did not have actual knowledge of the termination of the power of attorney or the attorney-in-fact’s authority by revocation or of the principal’s death or incapacity is conclusive proof of the nonrevocation or nontermination of the power at that time. If the exercise of the power of attorney requires execution and delivery of any instrument that is recordable, the affidavit when authenticated for record is likewise recordable.
(b) This section does not affect any provision in a power of attorney for its termination by expiration of time or occurrence of an event other than express revocation or a change in the principal’s capacity."
§4127 states:-
“Unless a power of attorney states a time of termination, the authority of the attorney-in-fact is exercisable notwithstanding any lapse of time since execution of the power of attorney.”
§4238 states:-
"(a) On termination of an attorney-in-fact’s authority, the attorney-in-fact shall promptly deliver possession or control of the principal’s property as follows:
(1) If the principal is not incapacitated, to the principal or as directed by the principal.
(2) If the principal is incapacitated, to the following persons with the following priority:
(A) To a qualified successor attorney-in-fact.
(B) As to any community property, to the principal’s spouse.
© To the principal’s conservator of the estate or guardian of the estate.
(3) In the case of the death of the principal, to the principal’s personal representative, if any, or the principal’s successors.
(b) On termination of an attorney-in-fact’s authority, the attorney-in-fact shall deliver copies of any records relating to transactions undertaken on the principal’s behalf that are requested by the person to whom possession or control of the property is delivered.
© Termination of an attorney-in-fact’s authority does not relieve the attorney-in-fact of any duty to render an account of actions taken as attorney-in-fact."
§4153 states:-
"(a) The authority of an attorney-in-fact under a power of attorney may be revoked as follows:
(1) In accordance with the terms of the power of attorney.
(2) Where the principal informs the attorney-in-fact orally or in writing that the attorney-in-fact’s authority is revoked or when and under what circumstances it is revoked. This paragraph is not subject to limitation in the power of attorney.
(3) Where the principal’s legal representative, with approval of the court as provided in §4206, informs the attorney-in-fact in writing that the attorney-in-fact’s authority is revoked or when and under what circumstances it is revoked. This paragraph is not subject to limitation in the power of attorney.
(b) An attorney-in-fact or third person who does not have notice of the revocation is protected from liability as provided in Chapter 5 (commencing with §4300)."
§4207 states:-
"(a) An attorney-in-fact may resign by any of the following means:
(1) If the principal is competent, by giving notice to the principal.
(2) If a conservator has been appointed, by giving notice to the conservator.
(3) On written agreement of a successor who is designated in the power of attorney or pursuant to the terms of the power of attorney to serve as attorney-in-fact.
(4) Pursuant to a court order.
(b) This section is not subject to limitation in the power of attorney."
§4154 states:-
"(a) If after executing a power of attorney the principal’s marriage to the attorney-in-fact is dissolved or annulled, the principal’s designation of the former spouse as an attorney-in-fact is revoked.
(b) If the attorney-in-fact’s authority is revoked solely by subdivision (a), it is revived by the principal’s remarriage to the attorney-in-fact."
¶ Texas
§751.131 states:-
"A durable power of attorney terminates when:
(1) the principal dies;
(2) the principal revokes the power of attorney;
(3) the power of attorney provides that it terminates;
(4) the purpose of the power of attorney is accomplished;
(5) one of the circumstances with respect to an agent described by Section §751.132(a)(1), (2) or (3) arises and the power of attorney does not provide for another agent to act under the power of attorney; or
(6) a permanent guardian of the estate of the principal has qualified to serve in that capacity as provided by §751.133."
§751.132 states:-
"(a) An agent’s authority under a durable power of attorney terminates when:
(1) the principal revokes the authority;
(2) the agent dies, becomes incapacitated, is no longer qualified, or resigns;
(3) the agent’s marriage to the principal is dissolved by court decree of divorce or annulment or is declared void by a court, unless the power of attorney otherwise provides; or
(4) the power of attorney terminates.
(b) Unless the durable power of attorney otherwise provides, an agent’s authority may be exercised until the agent’s authority terminates under Subsection (a), notwithstanding a lapse of time since the execution of the power of attorney."
§751.054 states:-
"The revocation by, the death of, or the qualification of a temporary or permanent guardian of the estate of a principal who has executed a durable power of attorney or the removal of an attorney in fact or agent under Chapter 753 does not revoke, suspend, or terminate the agency as to the attorney in fact, agent, or other person who acts in good faith under or in reliance on the power without actual knowledge of the termination or suspension, as applicable, of the power by:
(1) the revocation;
(2) the principal’s death;
(3) the qualification of a temporary or permanent guardian of the estate of the principal; or
(4) the attorney in fact’s or agent’s removal."
§751.134 states:-
“Termination of an agent’s authority or of a durable power of attorney is not effective as to the agent or another person who, without actual knowledge of the termination, acts in good faith under or in reliance on the power of attorney. An act performed as described by this section, unless otherwise invalid or unenforceable, binds the principal and the principal’s successors in interest.”
§751.054 provides that:-
"The revocation by, the death of, or the qualification of a temporary or permanent guardian of the estate of a principal who has executed a durable power of attorney or the removal of an attorney in fact or agent under Chapter 753 does not revoke, suspend, or terminate the agency as to the attorney in fact, agent, or other person who acts in good faith under or in reliance on the power without actual knowledge of the termination or suspension, as applicable, of the power by:
(1) the revocation;
(2) the principal’s death;
(3) the qualification of a temporary or permanent guardian of the estate of the principal; or
(4) the attorney in fact’s or agent’s removal."
In Texas, execution of a durable Power of Attorney does not revoke any earlier durable Power of Attorney, unless the durable Power of Attorney expressly provides that the earlier durable Power of Attorney is revoked (§751.135).
§751.135 states:-
“The execution of a durable power of attorney does not revoke a durable power of attorney previously executed by the principal unless the subsequent power of attorney provides that the previous power of attorney is revoked or that all other durable powers of attorney are revoked.”
§751.131(4) deals with fulfilment of purpose.
¶ New York
§5-1501A states:-
"1. A power of attorney is durable unless it expressly provides that it is terminated by the incapacity of the principal.
2. The subsequent incapacity of a principal shall not revoke or terminate the authority of an agent who acts under a durable power of attorney."
§5-1511 states:-
"1. A power of attorney terminates when:
(a) the principal dies;
(b) the principal becomes incapacitated, if the power of attorney is not durable;
© the principal revokes the power of attorney;
(d) the principal revokes the agent’s authority and there is no co-agent or successor agent, or no co-agent or successor agent who is willing or able to serve;
(e) the agent dies, becomes incapacitated or resigns and there is no co-agent or successor agent or no co-agent or successor agent who is willing or able to serve;
(f) the authority of the agent terminates and there is no co-agent or successor agent or no co-agent or successor agent who is willing or able to serve;
(g) the purpose of the power of attorney is accomplished; or
(h) a court order revokes the power of attorney as provided in section §5-1510 of this title or in section §81.29 of the mental hygiene law.
2. An agent’s authority terminates when:
(a) the principal revokes the agent’s authority;
(b) the agent dies, becomes incapacitated or resigns;
© the agent’s marriage to the principal is terminated by divorce or annulment, as defined in subparagraph two of paragraph (f) of §5-1.4 of the estates, powers and trusts law, unless the power of attorney expressly provides otherwise. If the authority of an agent is revoked solely by this subdivision, it shall be revived by the principal’s remarriage to the former spouse; or
(d) the power of attorney terminates.
3. A principal may revoke a power of attorney:
(a) in accordance with the terms of the power of attorney; or
(b) by delivering a revocation of the power of attorney to the agent in person or by sending a signed and dated revocation by mail, courier, electronic transmission or facsimile to the agent’s last known address. The agent must comply with the principal’s revocation notwithstanding the actual or perceived incapacity of the principal unless the principal is subject to a guardianship under article eighty-one of the mental hygiene law.
4. Where a power of attorney has been recorded pursuant to section two hundred ninety-four of the real property law, the principal shall also record the revocation in the office in which the power of attorney is recorded pursuant to section three hundred twenty-six of the real property law, provided the revocation complies with section three hundred seven of the state technology law.
5. (a) Termination of an agent’s authority or of the power of attorney is not effective as to any third party who has not received actual notice of the termination and acts in good faith under the power of attorney. Any action so taken, unless otherwise invalid or unenforceable, shall bind the principal and the principal’s successors in interest. A financial institution is deemed to have actual notice after it has had a reasonable opportunity to act on a written notice of the revocation or termination following receipt of the same at its office where an account is located.
(b) Termination of an agent’s authority or of the power of attorney is not effective as to the agent until the agent has received a revocation as required by subdivision three of this section. An agent is deemed to have received a revocation when it has been delivered to the agent in person, or within a reasonable time after it has been sent by mail, courier, electronic transmission or facsimile in accordance with subdivision three of this section.
6. The execution of a power of attorney does not revoke any power of attorney previously executed by the principal."
¶ Florida
§709.2104 states:
“Except as otherwise provided under this part, a power of attorney is durable if it contains the words: “This durable power of attorney is not terminated by subsequent incapacity of the principal except as provided in chapter 709, Florida Statutes,” or similar words that show the principal’s intent that the authority conferred is exercisable notwithstanding the principal’s subsequent incapacity.”
§709.2109 states:
"Termination or suspension of power of attorney or agent’s authority.—
(1) A power of attorney terminates when:
(a) The principal dies;
(b) The principal becomes incapacitated, if the power of attorney is not durable;
© The principal is adjudicated totally or partially incapacitated by a court, unless the court determines that certain authority granted by the power of attorney is to be exercisable by the agent;
(d) The principal revokes the power of attorney;
(e) The power of attorney provides that it terminates;
(f) The purpose of the power of attorney is accomplished; or
(g) The agent’s authority terminates and the power of attorney does not provide for another agent to act under the power of attorney.
(2) An agent’s authority is exercisable until the authority terminates. An agent’s authority terminates when:
(a) The agent dies, becomes incapacitated, resigns, or is removed by a court;
(b) An action is filed for the dissolution or annulment of the agent’s marriage to the principal or for their legal separation, unless the power of attorney otherwise provides; or
© The power of attorney terminates.
…
(4) Termination or suspension of an agent’s authority or of a power of attorney is not effective as to an agent who, without knowledge of the termination or suspension, acts in good faith under the power of attorney. An act so performed, unless otherwise invalid or unenforceable, binds the principal and the principal’s successors in interest."
§709.2118 states:
“Unless the power of attorney provides a different method for an agent’s resignation, an agent may resign by giving notice to the principal, to the guardian if the principal is incapacitated and one has been appointed for the principal, and to any co-agent, or if none, the next successor agent”
§709.2110 states:
"(1) A principal may revoke a power of attorney by expressing the revocation in a subsequently executed power of attorney or other writing signed by the principal. The principal may give notice of the revocation to an agent who has accepted authority under the revoked power of attorney.
(2) Except as provided in subsection (1), the execution of a power of attorney does not revoke a power of attorney previously executed by the principal."
¶ Illinois
§2-5. states:
“Unless the agency states an earlier termination date, the agency continues until the death of the principal, notwithstanding any lapse of time, the principal’s disability or incapacity or appointment of a guardian for the principal after the agency is signed. Every agency may be amended or revoked by the principal, if the principal has the capacity to do so, at any time and in any manner communicated to the agent or to any other person related to the subject matter of the agency”
§2-4 states (underling added):-
“The principal may specify in the agency the event or time when the agency will begin and terminate, the mode of revocation or amendment and the rights, powers, duties, limitations, immunities and other terms applicable to the agent…”
§2-6(b) states:
“If a court enters a judgement of dissolution of marriage or legal separation between the principal and his or her spouse after the agency is signed, the spouse shall be deemed to have died at the time of the judgment for all purposes of the agency…”
§2-4 states (underling added):-
“The principal may specify in the agency the event or time when the agency will begin and terminate, the mode of revocation or amendment and the rights, powers, duties, limitations, immunities and other terms applicable to the agent…”
§2-5 states:-
“…the execution of a power of attorney does not revoke a power of attorney previously executed by the principal unless the subsequent power of attorney provides that the previous power of attorney is revoked or that all other powers of attorney are revoked…”
¶ Pennsylvania
§5605 states:-
"Power of attorney not revoked until notice.
(a) Death of principal.–The death of a principal who has executed a written power of attorney, durable or otherwise, shall not revoke or terminate the agency as to the agent or other person, who, without actual knowledge of the death of the principal, acts in good faith under the power. Any action so taken, unless otherwise invalid or unenforceable, shall bind successors in interest of the principal.
(b) Disability or incapacity of principal.–The disability or incapacity of a principal who has previously executed a written power of attorney which is not a durable power shall not revoke or terminate the agency as to the agent or other person, who, without actual knowledge of the disability or incapacity of the principal, acts in good faith under the power. Any action so taken, unless otherwise invalid or unenforceable, shall bind the principal and his successors in interest.
© Filing a complaint in divorce.–If a principal designates his spouse as his agent and thereafter either the principal or his spouse files an action in divorce, the designation of the spo**use as agent shall be revoked as of the time the action was filed, unless it appears from the power of attorney that the designation was intended to survive such an event."
Legislation only applies in respect of certain Powers of Attorney for person - click here to read more noting that in Texas, legislation only applies to durable Powers of Attorney. ↩︎
Termination under legislation only applies in respect of a Power of Attorney for a person that is not excluded from the ambit of the legislation - click here to read more (for example, in respect of a Power of Attorney to which the legislation applies in Florida, §709.2109 provides that a Power of Attorney terminates if no agent is authorized to exercise authority and the Power of Attorney does not provide for another agent to act and in California, §4155 provides that a non-durable Power of Attorney is terminated by the principal losing capacity). ↩︎
Liquidation and other insolvency related events that may affect a Power of Attorney created by a commercial entity are complicated and vary from state to state. ↩︎
Being not a Power of Attorney excluded from the ambit of the legislation - click here to read more. ↩︎
Being not a Power of Attorney excluded from the ambit of the legislation - click here to read more. ↩︎
Ibid. ↩︎
In fact a Court in Texas recently concluded that where capacity was not disputed for a period of time, rights were lost to dispute a transaction entered into in reliance upon the Power of Attorney on grounds that the principal lacked capacity (See Cole & Strack v McWillie, Phillips and Burke, Texas Court of Appeals, Wright, CJ, Wilson & Bailey JJ, May 29, 2015, 46 S.W 3d 896, in which a deed not a Power of Attorney that had been on foot for a number of years was put before the Court by the parties to the deed, which had executed on behalf of the principal by an agent in circumstances where no party to the deed had disputed its validity on grounds that the principal may have lacked capacity at any earlier point in time. The Court also concluded that the Power of Attorney remained voidable at the election) of the principal, or the principal’s representative in the event the principal lacks capacity, which is also interesting in this context. ↩︎
Being not a Power of Attorney excluded from the ambit of the legislation - click here to read more. ↩︎
Which means a Power of Attorney that is intended to only authorize an agent to perform tasks between two dates at any time during any period that the principal has capacity, somehow qualifies as a durable Power of Attorney. ↩︎
Ibid. ↩︎
Ibid. ↩︎
Ibid. ↩︎
Ibid. ↩︎
Being a Power of Attorney for a person that is not excluded from the ambit of the legislation - click here to read more. ↩︎
For example, a principal might want to create this Power of Attorney and another Power of Attorney that is designed to operate at any time during any period between now and say, 31 December 2035 that the principal lacks capacity. ↩︎
Being a Power of Attorney for a person that is not excluded from the ambit of the legislation - click here to read more. ↩︎
Ibid. ↩︎
Ibid. ↩︎
Ibid. ↩︎
Ibid. ↩︎
Ibid. ↩︎
Ibid. ↩︎
Ibid. ↩︎
Ibid. ↩︎
Ibid. ↩︎
Ibid. ↩︎
Ibid. ↩︎
Being Powers of Attorney for a person that are not excluded from the ambit of the legislation - click here to read more. ↩︎
Being a Power of Attorney for a person that is not excluded from the ambit of the legislation - click here to read more. ↩︎
Ibid. ↩︎
Ibid. ↩︎
Ibid. ↩︎
Ibid. ↩︎
Ibid. ↩︎
Ibid. ↩︎
Ibid. ↩︎
Ibid. ↩︎
Ibid. ↩︎
Ibid. ↩︎
Ibid. ↩︎
Ibid. ↩︎
Being Powers of Attorney for a person that are not excluded from the ambit of the legislation - click here to read more. ↩︎
Being a Power of Attorney for a person that is not excluded from the ambit of the legislation - click here to read more. ↩︎