You may see a POA referred to as a “durable” power of attorney. Most POAs are “durable,” meaning that the POA is effective even after the principal becomes “incapacitated”—unable to act on his or her own behalf. For this reason, a durable POA may be especially important for those who are facing the possibility of deportation. In most states, the POA must say that it is durable to have this effect; however, in a strong minority of states, if the POA is silent on the issue, it will be deemed to be durable. For example, California, New York, Arizona, and Florida are in the majority of states that require durability to be explicitly stated, while Nevada, Colorado, Pennsylvania, and New Mexico are in the minority.
A POA generally lasts until it is revoked in writing or until the principal dies (or for a POA that is not durable, until the principal becomes incapacitated). In some circumstances, a POA may terminate earlier. For example, in some states, a POA that designates the principal’s spouse as an agent may terminate if the couple divorces.
A principal can also specify in the POA that it ends on a certain date or upon the happening of a certain event. A POA with a set ending point may be considered more trustworthy than one without an ending point. However, if you decide to put a time limit on your POA, you should be sure to give your agent enough time to finish everything that needs to be done.
On the other hand, one disadvantage to having a POA with no ending point is that POAs can be difficult to cancel. You can cancel a POA by signing a separate piece of paper that says the POA is cancelled, sending a copy of the paper to the agent and to anyone (such as a bank) that had dealings with the agent, and physically taking back the original POA and all copies that have been given to anyone. Despite your best efforts, it may be hard to tell everyone that a POA has been cancelled, and this can lead to unwanted results. For example, if your property gets sold after the POA has been cancelled, but neither the buyer nor the buyer’s creditor was aware of the cancellation, it will be difficult to get the property back.
You can change a POA (for example to give an agent a new task or to take away one of the agent’s tasks) by canceling the original POA and making a new one. This can be done with one document, as long as the new POA says that all previous POAs are cancelled. Many statutory form POAs already contain this language. Statutory form POAs are discussed in further detail in the following section. However, for the same reasons that it is hard to cancel a POA, it is also hard to change POAs. It is hard to know whether anyone is still relying on the original POA, so, it is important that all recipients of the original POA receive notice of the cancellation or new POA. Also, as noted in the next section, modifying or cancelling a POA while detained can be especially challenging, so when crafting a POA it is important to consider your current situation and wishes, as well as how those could change in the future.
If you want to amend the POA from your home country, you should review the section below about drafting POAs after deportation. In addition to following these rules, once the new POA is created, you should have your agent in the United States collect and destroy all copies of the original POA to avoid any confusion.