Generally, it is only possible to act on an original PoA (or notarized true copy of the original), and thus it is very important to keep the original(s) safe and secure where it can be easily located when needed, but not accessed inappropriately before.
There are three options:
- The grantor keeps it.
- The grantor gives it to the attorney. Beware that unless the PoA includes a condition precedent, then the attorney can act on it at any time.
- Leave it with your lawyer or other trusted intermediary, who is to release it to the attorney but only if certain conditions are met. The key is documenting properly the conditions under which the intermediary should release it (eg. “if I am incapable of managing my affairs”) and ensuring that there are suitable means to determine if those conditions have been met.
Note that if there is a condition like “if I am incapable of managing my affairs” then someone will have to assess your capacity and make a determination of incapacity. This provides security against some over-zealous use of the POA, but, does impose costs and delay. As well, unless the POA document specifies either the method or person who will make the capacity determination, there may be uncertainty and doubt about who gets to make the determination.
You should revoke all prior PoAs when you make a new one. Revocation should be done expressly in the text of the new PoA. Only a person who is capable of granting a PoA is capable of revoking one. Accordingly, someone who has lost the capacity to grant a PoA cannot fire or terminate their attorney.
A PoA that is destroyed by the grantor is revoked. You can revoke a PoA by tearing it, burning it, or the like. Generally, if you make a new PoA you may wish to destroy previous ones. However, if there is any concern about the validity of a new PoA (for instance, if there is concern about the capacity of the grantor), then retaining a prior valid PoA can be helpful.
Normally, only an original PoA can be enforced. If the original has been lost, the presumption is that the testator destroyed it and thereby revoked it. This presumption can be overcome, but with considerable difficulty. It is very difficult to deal with a lost or misplaced PoA, and thus it is very important to keep original PoA in a safe location while also ensuring that they can be located when required.