Powers of Attorney in Alabama
Under the Alabama Uniform Power of Attorney Act, § 26-1A-104, a power of attorney is durable — it survives your incapacity — unless it expressly provides that it terminates on incapacity. That is the opposite of the old common-law rule. But durability is not the whole story: § 26-1A-201 requires certain powers to be granted expressly, and a generic form usually does not grant them.
What a power of attorney actually is
A document in which you (the principal) authorise someone else (your agent, sometimes called an attorney-in-fact) to act for you in financial and legal matters. It is not a will, it does not survive your death, and it says nothing about medical decisions — that is the advance directive, a separate document.
It is also the document families need most urgently and think about least. A will matters after you die. A power of attorney matters while you are alive and cannot sign.
You must have capacity to sign a power of attorney. Once capacity is gone, the window is closed, and the alternative is a guardianship or conservatorship proceeding in probate court — public, slower, more expensive, and supervised by a judge rather than chosen by you. Nearly every conservatorship we see is a power of attorney that was never signed.
Durable by default — and what that changed
Section 26-1A-104 provides that a power of attorney to which the chapter applies is durable unless it expressly provides that it is terminated by the incapacity of the principal. Alabama adopted the Uniform Act in 2011.
The practical consequence: you no longer need magic durability language to make it survive incapacity. But older forms drafted under the previous regime, and out-of-state templates, may contain language that does the opposite of what a family wants.
The powers that must be granted expressly
This is where generic forms fail. Section 26-1A-201 requires an express grant for a set of powers that would otherwise let an agent alter the principal’s estate plan. In practice the ones that matter to families are:
- Making gifts — including the small annual gifts families use in Medicaid and estate planning.
- Creating, amending, revoking or terminating a trust.
- Changing rights of survivorship.
- Changing beneficiary designations — the forms that control retirement accounts and life insurance.
- Delegating the agent’s own authority.
- Waiving the right to be a beneficiary of a joint and survivor annuity.
A form downloaded from the internet typically grants none of these. The family discovers it at the moment they need to move an account or fund a trust, which is the worst possible moment.
Signing it so it works
- Sign it, or direct someone to sign for youSection 26-1A-105 provides the power of attorney must be signed by the principal, or in the principal’s conscious presence by another individual directed by the principal.
- Have it notarisedThe same section provides that a signature is presumed genuine if the principal acknowledges it before a notary public or other authorised officer. That presumption is what makes a bank willing to accept it.
- Name a successor agentYour first choice may predecease you, move away, or be unwilling when the time comes. Naming a second and third avoids a court proceeding.
- Decide when it takes effectImmediately, or only on incapacity. A springing power sounds safer but creates a practical problem — someone has to prove the incapacity before the agent can act, which takes time you may not have.
- Give the agent an originalInstitutions frequently want to see one. A power of attorney locked in a safe deposit box that only the incapacitated person can open is a familiar and avoidable trap.
Almost always one of three reasons: the document is old and the institution is nervous about whether it has been revoked; it does not expressly grant the specific power being exercised; or the institution insists on its own form. Some of that is unreasonable and some is not. Refreshing the document every few years and knowing what § 26-1A-201 requires solves most of it before it starts.
What it does not cover
- Health care decisions. Those need an advance directive under § 22-8A-4, with two witnesses at least 19 years old and specific disqualifications — notarisation is not required for that one.
- Anything after death. The authority ends when you die; from that point the personal representative acts under the will and letters from the probate court.
- Making a will for you. An agent cannot execute your will.
Limestone, Madison, Morgan, Lauderdale, Colbert, Franklin and Lawrence Counties. Filing fees and local practice differ from one probate office to the next.
This is the document to sign first.
It is the cheapest one, it is the one that prevents a conservatorship, and it is the only one that stops being available if you wait too long.
Common questions
Is my power of attorney durable?
Under § 26-1A-104 it is durable unless the document expressly says it terminates on your incapacity. Alabama flipped this default when it adopted the Uniform Power of Attorney Act in 2011. Older or out-of-state forms may still contain contrary language, so it is worth reading.
Can my agent make gifts or change my beneficiaries?
Only if the document expressly says so. Section 26-1A-201 requires an express grant for gifts, creating or revoking a trust, changing rights of survivorship, changing beneficiary designations, delegating authority, and waiving certain annuity rights. Generic forms usually grant none of them.
Does it need to be notarised?
Section 26-1A-105 requires the principal’s signature, and provides that the signature is presumed genuine if acknowledged before a notary. It is that presumption that makes banks willing to accept it, so in practice yes.
What if my parent has already lost capacity?
Then a power of attorney is no longer available — signing one requires capacity. The route is a guardianship or conservatorship in probate court: public, slower, more expensive, and the judge decides who serves rather than your parent.
Does a power of attorney let someone handle my medical care?
No. That is the advance directive with a health care proxy under § 22-8A-4 — a separate document with its own witnessing rules, including two witnesses at least 19 years old and disqualification of relatives, the proxy, and anyone entitled to part of your estate.
Does it still work after I die?
No. The agent’s authority ends at death. From that point the personal representative acts, under the will and letters issued by the probate court.
Sign it while it is still an option
A power of attorney costs a fraction of a conservatorship and takes one appointment. The only version that fails is the one nobody got around to.
Daniel Shawn Pickens
Daniel S. Pickens Law · 300 West Green Street, Athens, Alabama 35611 · 256-434-1678. Office hours Monday to Friday, 8:00 a.m. to 4:30 p.m.; phones answered 24/7.