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Can I Use a Person’s Durable Power of Attorney After They Die?

| May 31, 2017 | Elder Law, Estate Planning |

As estate attorneys, we commonly see situations where a fmaily member comes to us after their relative has died. They’ll explain that their relative died owning property or a bank account and they want to know whether they can use the deceased person’s Durable Power of Attorney to transfer these assets. The answer is a definite “No!”

A Durable Power of Attorney in Florida continues to be effective even if the person who signed it becomes incapacitated. This is the “durable” aspect of the power of attorney. However, if the person dies, the Durable Power of Attorney terminates automatically as a matter of law. Section 709.2109, Fla. Stat. specifically provides that a Durable Power of Attorney terminates upon the death of the person who signed it. Furthermore, the termination applies even if the Durable Power of Attorney has langauge saying that it continues after death.

Often when a person has a Durable Power of Attorney authorizing them to act for a relative, they will be asked to sign paperwork showing that that the relative is still living. Banks and financial institutions often require this to be done. This is their way of protecting against someone using the Durable Power of Attorney after the death of their relative.

For example, consider a situation where Joan signs a Durable Power of Attorney authorizing her daughter, Sandy, to act for her. Joan becomes ill and needs Sandy’s help paying bills. Sandy goes to the bank with the Durable Power of Attorney and asks to be added as a signer on Joan’s account. Before the bank will allow this, they may require Sandy to sign a document stating that Joan is still living. By doing this, the bank is protecting against liability for misuse of the Durable Power of Attorney by Sandy. 

What would be the consequences if someone used a Durable Power of Attorney after the death of the person who signed it? There would certainly be civil liability by the person misusing the Durable Power of Attorney. This could result in that person being held liable for damages. In addition, there could be criminal liability, particularly if the Durable Power of Attorney was used to wrongfully get possession of assets for one’s own use.

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