What If My Attorney In Fact Dies Or Becomes Incapacitated?

When your attorney-in-fact (the person you’ve named in your power of attorney) dies or becomes incapacitated, you need a backup plan. Attorney Kellen Bryant explains how successor agents work and what steps are required to ensure continuous protection of your financial and legal affairs.

Understanding Attorney-in-Fact and Power of Attorney Roles

Your attorney-in-fact is the person you’ve designated in your durable power of attorney to make financial and legal decisions on your behalf if you become incapacitated. But what happens when this trusted person can no longer serve?

The Importance of Successor Agents in Power of Attorney Documents

Well-drafted durable power of attorney documents anticipate this situation and include provisions for successor agents.

How Succession Planning Works

Most comprehensive power of attorney documents include language that addresses what happens if your primary attorney-in-fact cannot serve. The document typically:

• Names a specific successor attorney-in-fact
• Outlines the circumstances that trigger the succession
• Explains the process for the successor to assume authority
• May name multiple successors in order of priority

Example of Successor Agent Planning

For instance, your power of attorney document might state: “If my attorney-in-fact dies or becomes incapacitated, my son John Smith shall serve as successor attorney-in-fact with the same powers and authority.”

When Does a Successor Attorney-in-Fact Take Over?

A successor agent typically assumes authority when the original attorney-in-fact:

• Dies
• Becomes incapacitated or mentally incompetent
• Resigns from the role
• Is unable or unwilling to serve
• Lives too far away to effectively serve

Required Documentation for Successor Agent Authorization

When a successor attorney-in-fact needs to assume authority, they must provide proper documentation to third parties such as banks, healthcare providers, and other institutions.

Essential Documents Required

The successor agent will need to present:

1. The Original Power of Attorney Document

• The complete durable power of attorney that names them as successor
• Certified copies may be acceptable depending on the institution

2. Proof of the Original Agent’s Death or Incapacitation

• Death certificate (if the attorney-in-fact has died)
• Medical records or doctor’s statement (if incapacitated)
• Court order (in some cases of disputed incapacity)

Additional Documentation That May Be Required

• Successor’s identification
• Notarized affidavit accepting the appointment
• Any institution-specific forms

Challenges When Your Power of Attorney Lacks Successor Provisions

If your power of attorney document doesn’t name a successor agent, several problems can arise:

No Automatic Replacement

• No one has legal authority to act on your behalf
• Family members cannot automatically step in
• Financial and legal matters may be frozen

Court Intervention May Be Required

• Guardianship proceedings might be necessary
• Court-appointed guardian may not be your preferred choice
• Expensive and time-consuming legal process
• Loss of privacy and family control

Best Practices for Power of Attorney Succession Planning

To avoid complications, ensure your power of attorney includes:

Multiple Successor Agents

• Name at least two successor agents in order of preference
• Consider geographic location of potential agents
• Choose people who are likely to outlive you or remain capable

Clear Succession Language

• Specific circumstances that trigger succession
• Clear identification of successor agents
• Same powers granted to successors as primary agent

Regular Review and Updates

• Review your power of attorney every few years
• Update when circumstances change
• Ensure successor agents are still willing and able to serve

Steps to Take If Your Attorney-in-Fact Cannot Serve

If you discover your attorney-in-fact has died or become incapacitated:

1. Review Your Power of Attorney Document

• Check if successor agents are named
• Understand what documentation is required

2. Contact the Successor Agent

• Inform them of the situation
• Ensure they’re willing and able to serve

3. Gather Required Documentation

• Obtain death certificates or medical documentation
• Prepare copies of the power of attorney

4. Notify Relevant Institutions

• Banks and financial institutions
• Healthcare providers
• Insurance companies
• Government agencies

When Professional Help Is Needed

Consider consulting an elder law attorney if:

• Your power of attorney doesn’t name successor agents
• All named agents are unable to serve
• There are disputes about succession
• You need to update your power of attorney documents
• Court intervention may be required

Protect Your Future with Proper Succession Planning

Don’t leave your family scrambling if your attorney-in-fact can no longer serve. Proper succession planning in your power of attorney documents ensures continuous protection of your interests.

Put your mind at ease and make an appointment to meet with the Berg Bryant Elder Law Group in Jacksonville, Florida today. Ensure your power of attorney documents include comprehensive succession provisions and protect your family from unnecessary complications.