The Affidavit as Proof of Continuing Authority
When an agent needs to use a durable power of attorney, third parties sometimes hesitate. A bank may wonder whether the document has been revoked. A title company may question whether the principal is still alive. This statute provides a practical solution: a sworn affidavit from the agent.
An affidavit executed by the agent under a durable power of attorney stating that the agent did not have at the time of exercise of the power actual knowledge of the termination of the power by revocation or of the principal's death creates, in the absence of fraud, a rebuttable presumption of the nonrevocation or nontermination of the power at that time.
A.R.S. § 14-5505(A)In plain terms, the agent signs a sworn statement saying, "I did not know this power of attorney was revoked, and I did not know the principal had died." That statement creates a legal presumption that the power of attorney is still valid. It can be challenged, but the burden shifts to whoever claims otherwise.
Recording the Affidavit for Real Estate Transactions
When the agent uses the power of attorney for something involving real property, such as signing a deed or mortgage document, the affidavit can be recorded alongside the transaction. This protects the chain of title and gives title companies confidence to proceed.
The statute also clarifies that this affidavit process does not override any built-in expiration dates or triggering events written into the power of attorney itself. If the document says it expires on a specific date or terminates upon a specific event, those terms still control.
