Powers of attorney are commonly used tools, but few people take the time to really understand how they work. This includes lawyers and lay people. Depending on whether a power of attorney is considered durable, there are certain events, such as the principal’s subsequent incapacity, that may limit or prevent an agent from exercising their enumerated powers pursuant to the power of attorney instrument.

Let’s take a look at some of the events that can result in a suspension or termination of a power of attorney. First, if a power of attorney is not durable, meaning it does not contain certain language that the law refers to, the following events will terminate the power of attorney. 1) the director dies, 2) is incapacitated. Of course, a subsequent “poa” that explicitly revokes all of the above will also result in its termination.

If a poa is durable, the scenario mentioned above is a bit different. While the death of the principal still results in termination, the subsequent incapacitation of the principal could lead to a multitude of scenarios. If an application is filed to determine the principal’s incapacity, the powers granted in the power of attorney are suspended until the application is dismissed or the court enters an order authorizing the agent to execute the powers granted. Certain powers, such as the authority to make health care decisions on behalf of the director, remain in effect until the Court orders otherwise.

In emergency situations, if the agent feels they need to act on behalf of the principal, the agent may petition or “petition” the court to allow them to use powers that would otherwise be suspended, after a petition has been filed to determine the inability.

Other issues arise when powers of attorney conflict with advance directives that the principal may have executed and which may have given different people the authority to act on their behalf. These disputes sometimes involve family members, who have different opinions about what is best for the principal. The law states that if an advance directive and a poa conflict, the advance directive takes precedence, unless a poa is executed later, and it expressly states otherwise.

While it’s easy to get do-it-yourself forms for powers of attorney and other documents such as a living will and advance directives, understanding how these instruments interact and often conflict requires a bit of patience and, in many cases, some advice from a lawyer.