An agent under an Alabama power of attorney is a fiduciary. The authority exists for the principal’s benefit, not the agent’s.
Alabama adopted the Uniform Power of Attorney Act in 2011, at Ala. Code § 26-1A-101 and following. Two features matter immediately: a power of attorney is durable by default under § 26-1A-104, and certain powers do not exist unless the document expressly grants them.
Durable by default
Section 26-1A-104 states it plainly: “A power of attorney to which this chapter applies is durable, unless it expressly provides that it is terminated by the incapacity of the principal.”
This reversed the old rule. Before the Act, a power of attorney needed specific durability language or it lapsed exactly when it was needed most. Under current Alabama law you have to opt out of durability, not into it.
Execution — and why you notarize it anyway
Section 26-1A-105 requires that a power of attorney “be signed by the principal or in the principal’s conscious presence by another individual directed by the principal to sign the principal’s name on the power of attorney.”
It then adds: “A signature on a power of attorney is presumed to be genuine if the principal acknowledges the signature before a notary public or other individual authorized by law to take acknowledgments.”
The statute creates a presumption of genuineness only where the signature is acknowledged. Banks, brokerages and title companies rely on that presumption — and an institution that refuses to accept a power of attorney is a problem you cannot solve once the principal has lost capacity.
If the agent may need to sign anything touching real property, the document should also be recordable in the county where the land sits.
Ala. Code §§ 26-1A-104, 26-1A-105.What the agent actually owes
The duties of an agent under the Uniform Power of Attorney Act track ordinary fiduciary principles:
- Act within the authority granted. Read the document. If it is not in there, you cannot do it.
- Act in the principal’s best interest, in good faith, and consistently with the principal’s reasonable expectations to the extent you know them.
- Keep the money separate. Never commingle the principal’s funds with your own. This is the single most common way a well-meaning agent creates a problem they cannot explain later.
- Keep records. Receipts, statements, a simple ledger of what came in and what went out. If a sibling asks in two years, the record is your protection, not your burden.
- Preserve the estate plan where you know it and where doing so is consistent with the principal’s best interest. Do not casually undo what the principal set up.
- Cooperate with a health care agent where one is acting.
Just been handed a power of attorney?
A short conversation about what the document does and does not authorise saves an enormous amount of trouble. Call the Athens office.
Powers that must be expressly granted
This is the part that catches families out. Under the Act, an agent may only exercise certain powers if the document expressly grants them — they are not implied by a general grant of authority. The categories include acts that could change who ultimately receives the principal’s property, such as making gifts, creating or changing survivorship interests and beneficiary designations, and delegating authority.
A generic form downloaded from the internet frequently omits these express grants. The result is an agent who cannot make the very transfers the family assumed were possible — and who cannot fix it, because the principal no longer has capacity to sign a new document.
If gifting or beneficiary changes may ever be needed, that has to be decided and drafted while the principal is competent.
Ala. Code § 26-1A-201.What an agent cannot do
- Make or change the principal’s will. A power of attorney is an agency document. It does not reach testamentary acts.
- Act after the principal dies. Authority ends at death. From that point the personal representative appointed by the probate court is the one with authority — not the agent.
- Make health care decisions, unless the document is a health care power. Health care decisions in Alabama run through the advance directive under § 22-8A-4.
- Self-deal, beyond what the document expressly permits.
When the authority ends
- The principal diesAuthority terminates immediately. Continuing to use the power of attorney after death is a serious problem.
- The principal revokes itA competent principal can revoke at any time. Notify every institution that has a copy on file, in writing.
- The document says soA power of attorney can be written to expire on a date or on an event.
- The purpose is accomplishedA limited power of attorney granted for one closing ends when the closing is done.
- The agent can no longer serveDeath, incapacity or resignation of the agent. Which is why a named successor agent is essential.
If there is no power of attorney and capacity is gone
The document cannot be signed retroactively — signing requires capacity. The route then is a conservatorship or guardianship petition in probate court. Alabama probate courts have original and general jurisdiction over the appointment and removal of guardians for minors and persons of unsound mind under § 12-13-1(b).
It works. It is a public proceeding with a hearing, a bond and continuing court supervision, and it costs a multiple of what the document would have cost.
Common questions about Alabama powers of attorney
Does an Alabama power of attorney need to be notarized?
Section 26-1A-105 requires the principal’s signature. It provides that the signature is presumed genuine if acknowledged before a notary or other authorized officer. Notarize it — institutions rely on that presumption, and an unacknowledged document invites refusal.
Is a power of attorney automatically durable in Alabama?
Yes. Under § 26-1A-104 a power of attorney is durable unless it expressly provides that it terminates on the principal’s incapacity. That is the reverse of the old rule.
Can an agent under a power of attorney change the principal’s will?
No. A power of attorney is an agency document for acts done on the principal’s behalf while alive. It does not authorise making or altering a will.
Can my agent give my property away?
Only if the document expressly grants that power. Gifting is one of the categories that must be expressly conferred rather than implied from a general grant. Many downloaded forms omit it.
Does a power of attorney survive the principal’s death in Alabama?
No. Authority ends at death. After that only a personal representative appointed by the probate court has authority over the estate.
What if a bank refuses to accept my power of attorney?
It happens, particularly with older documents or ones lacking acknowledgment. The Act contains provisions addressing acceptance and refusal of a power of attorney. Practically: make sure the document is notarized, provide a certified copy, and get advice early rather than after the principal has lost capacity.
Should I name more than one agent?
Name a successor, certainly. Naming two co-agents who must act together sounds fair and creates friction in practice — every signature needs both. Where you want oversight, an accounting obligation is usually better than a co-agent.
Get the document right while it can still be signed
Durable powers of attorney, advance directives and wills for families across Limestone, Madison, Morgan, Lauderdale, Colbert, Franklin and Lawrence Counties.
Daniel Shawn Pickens
Attorney at Daniel S. Pickens Law in Athens, Alabama. The firm handles estate planning, probate, real estate closings and title work, deeds, business formation and contracts for families and businesses across Limestone, Madison, Morgan, Lauderdale, Colbert, Franklin and Lawrence Counties.
Questions about estate planning or probate? Email estateplanning@dsp.law or call 256-434-1678.
Daniel S. Pickens Law · 300 West Green Street, Athens, Alabama 35611
