Can Legal Heir Appoint Power Of Attorney?

A legal heir has specific rights over the property or estate of the deceased person. In certain circumstances, a legal heir may need to appoint someone to act on behalf of the estate or individual, and this is where the concept of Power of Attorney (PoA) comes into play. However, there are particular rules and conditions governing whether and how a legal heir can appoint a Power of Attorney.

Steps for a Legal Heir to Appoint Power of Attorney

Legal Authority as Heir:

A legal heir must have clear rights to the estate or property they wish to manage. If the estate has already gone through probate or is under legal dispute, the heir may need formal legal rights to act on behalf of the deceased.

Determine the Type of Power of Attorney:

The heir must decide what kind of Power of Attorney is required—General PoA (broad powers) or Special PoA (specific powers). The type of PoA determines the scope of authority the agent will have.

Consent of the Principal (If Alive):

If the principal (the person granting the PoA) is still alive, their consent is required for the appointment. In cases where the principal is incapacitated, a legal heir may need to seek a court-appointed guardian or executor to make such an appointment.

Draft the Power of Attorney Document:

The PoA must be drafted clearly, outlining the powers granted, the limitations, and the scope of authority. It should specify the legal heir as the principal and the agent (the person receiving the PoA).

Witnesses and Registration:

The Power of Attorney document must be signed by the legal heir in the presence of witnesses. Depending on jurisdiction, it may also need to be notarized or registered with the appropriate authorities to ensure its validity.

Revocation of Power of Attorney:

If at any point the legal heir wants to revoke or change the Power of Attorney, they must do so by issuing a revocation document that informs the appointed agent and any relevant parties.

Legal Actions and Protections

Executor’s Role:

If the estate is in probate or if the legal heir is managing the estate after someone’s death, an executor may be appointed by the court. The executor has the legal right to make decisions on behalf of the estate, including the possibility of appointing an agent with Power of Attorney.

Court Intervention:

In some cases, if there is a dispute about the validity of the appointment of Power of Attorney or if the heir does not have clear authority, the matter may need to be resolved through court intervention.

Third-Party Acceptance:

When using a Power of Attorney, it’s crucial to ensure that third parties (such as banks or government authorities) recognize the document. They may require additional verification, especially if it involves significant transactions or estate management.

Example

A legal heir inherits the property of a deceased relative and needs someone to manage the estate. If the legal heir is incapacitated or unable to handle the responsibilities, they may appoint a trusted individual to manage the affairs by creating a Power of Attorney. The heir would need to:

Ensure they have the authority to appoint the Power of Attorney (whether the person is still alive or if the heir is managing the estate post-death).

Draft a Power of Attorney document that specifies the scope of the agent’s powers.

Get the document signed and witnessed to make it legally binding.