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 if someone revoked the document. A title company may question if the principal is still alive.
This statute offers a practical fix: a sworn affidavit from the attorney in fact.
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. The agent states they did not know the power of attorney was revoked. They also confirm they did not know the principal had died.
That statement creates a legal presumption that the agent's authority is still valid. It can be challenged, but the burden shifts to whoever claims otherwise.
Recording the Affidavit for Real Estate Transactions
The agent may use the power of attorney for real property tasks, like signing a deed or mortgage document. In that case, the affidavit can be recorded alongside the deal. This protects the chain of title and gives title companies confidence to move forward.
The statute also clarifies that this affidavit process does not override built-in expiration dates. If the POA says it expires on a set date or ends at a specific event, those terms still control.
For family members managing a loved one's finances, this affidavit process removes a common barrier. The agent can present a simple sworn statement instead of waiting for a court-appointed conservator. This keeps things moving when time matters most.
Elder law professionals often recommend agents keep a current affidavit on hand. This is especially useful if the durable power of attorney is several years old.
Financial institutions cooperate more readily with both the original document and a recent affidavit. As a result, the agent can confirm their authority with less pushback.
If someone later appoints a conservator, that person's authority takes priority. But until that happens, the affidavit gives the agent a clear way to prove their right to act.