When Using a Power of Attorney is a Bad Idea

Part of planning for your life is anticipating that you may become incapacitated and need someone to make decisions as you would like. A written power of attorney gives someone you trust this power. There are; however, a number of things to keep in mind as you do this.

We get these questions often. Can I (the “agent”) use my Colorado power of attorney after the death of the person who granted the power (the “principal”)? I am named the executor/Personal Representative in the Colorado will, and the testator is in the hospital.

A Colorado financial power of attorney has no effect after the death of the principal.  A Colorado Personal Representative named in the will has no authority to act until the testator dies and the will is probated.  Probate is the court process for authenticating a will.  To use either power at the wrong time can have serious consequences.

Can I use the will to gain access to financial information and take other actions? The answers are no and no. Think of this as a two-person relay race.  During life, the person with the financial power or attorney is running down the track with the “baton” which represents the ability to act on behalf of another individual.  At death, that baton is handed off to the person appointed Personal Representative of the decedent’s Colorado estate.  Even if it is the same person for both positions, the positions are separate and distinct.

In our experience, many laypeople do not understand that their power as agent terminates when the principal dies.  The solution is to probate the will and let the Personal Representative take over where the agent left off.  Similarly, in Colorado, the mere fact that a person is named as Personal Representative is not enough.  Even if the testator has died, it is not enough.  The will must be probated, and the Personal Representative appointed by the court.

There are other ways a Colorado power of attorney may terminate before the death of the principal.  Seek appropriate legal advice before using any power of attorney or acting as Personal Representative.