Dear Mr. Di Costanzo:

Can I act under my father’s power of attorney after he dies?

One of the most important estate planning documents one can prepare is a power of attorney. It allows you to appoint someone else, your agent, to a handle your financial matters. All powers of attorney are durable, meaning that they survive your incapacity. For instance, if you sign a power of attorney appointing your daughter as your agent, your daughter’s authority to act continues even if you lose your mental capacity. If you fail to prepare a power of attorney, or if you have a poorly prepared power of attorney, it is likely that your family will have to contemplate a guardianship proceeding to handle your financial affairs while you are alive but incompetent.

Having a durable power of attorney, however, does not mean that it survives your death. In fact, a power of attorney dies with you. Once your father died, your authority to act on his behalf ceased. If there are assets to be marshaled, bills to be paid or an estate to be administered, someone will likely need to consider a probate or administration proceeding to gain access to his assets and wind down his affairs.

Salvatore M. Di Costanzo is a partner with the firm of Maker, Fragale & Di Costanzo, LLP located in Rye and Yorktown Heights. Mr. Di Costanzo is an attorney and accountant whose main area of practice is elder law and estate planning. He can be reached at (914) 245-2440 or via e-mail at Visit his practice specific website at

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