Durable POA Does Not Survive Divorce Proceeding

If you have a client using a durable power of attorney, beware of Ala. Code 1975, § 26-1-2(g)(3). This little known subsection provides that authority given to a spouse under a durable power of attorney is revoked under a number of circumstances. These include divorce, annulment, legal separation and even the filing of a divorce proceeding. Surrounded by other subsections dealing with health care proxies and the Alabama Natural Death Act, the application of §  26-1-2(g)(3) to durable powers of attorney generally can easily be missed.

When counselling a client about to use a durable power of attorney in which the principal is the client's spouse, inquire first whether your client's marital status has changed. If you have reason to doubt your client's information, quickly check on-line court records to determine whether your client is party to a divorce proceeding. A client who falls within the scope of § 26-1-2(g)(3) cannot exercise a durable power of attorney as the subsection revokes it. A few minutes of due diligence in ascertaining the validity of the durable power of attorney can prevent a later claim of malpractice.