Do durable powers of attorney expire?

March 16, 2016

Dear Friends,

Recently I visited an elderly couple at their home in Washington Heights to discuss their interest in preparing a power of attorney and other documents.  The couple noted that one reason a power of attorney is needed is that the wife’s had expired.

Expired?

Powers of attorney generally do not “expire.”  The standard form of the New York durable power of attorney has a section entitled “Termination,” which states, “This Power of Attorney continues until I revoke it or it is terminated by my death or other event described in section 5-1511 of the General Obligations Law.”  That section of the GOL says nothing about “expiration” -- and nor does anything else in the document form (unless the client includes an expiration date in the “Modifications” section -- but I have never seen this done).  So why did this couple believe that the wife’s power of attorney had expired?

They showed me the power of attorney -- a form they’d obtained from their bank –- which, like all power of attorney documents, had been notarized.  And the notary stamp, like all such stamps, showed the date of the expiration of the notary’s “commission.”  An employee at the bank had seen this expiration date, misinterpreted it to represent the expiration date of the entire document, and told the couple that the bank would not honor it.  I was happy to inform the couple that the bank employee was wrong, and that they should insist that the bank’s legal department review the document should they find further resistance.

I share this story because I have encountered similar scenarios over the years, most commonly where a senior herself misunderstands the significance of the notary expiration date and, believing the power of attorney to have expired, does not bother to try to use it at all.

So should one of your clients tell you that they or a loved one have a power of attorney, “but it’s expired,” raise an eyebrow and ask to see the document itself.  And if upon reviewing it you’re unsure, feel free to contact me, and I’ll be happy to take a look.

And speaking of powers of attorney, as always, please keep those life-planning documents (“LPDs”) referrals coming! You should already have our referral forms, but in case you don’t, please click here for our intake form, and click here for our LPDs questionnaire -- which can be faxed to us at (347) 521-5732.

All the best,

 

Alex