Durable Power of Attorney

What a durable power of attorney is and why you need one

A durable power of attorney (POA) is a legal document that lets another person act on your behalf—signing documents, managing finances, making medical decisions, or handling other matters. Anything they do under that authority is legally binding on you.

You can create a POA that's broad (covering all your affairs) or narrow (limited to specific tasks or a set time period). A durable POA lasts until you revoke it, even if you become incapacitated. That's what makes it different from a standard POA, which typically ends if you can no longer make decisions yourself.

Without a POA in place, no one can legally represent you unless a court appoints someone. A court-appointed conservator or guardian may not be someone you'd choose, and they can charge your estate for their services.

Limited vs. general powers of attorney

A limited POA restricts what the other person can do—perhaps only paying bills, or only selling a specific piece of property. A general POA gives them the same authority you have. Only sign a general POA if you completely trust the person and are certain they'll act as you would.

When does a power of attorney take effect?

Most POAs are effective immediately. The person you name can use it as soon as you sign, unless the document says otherwise.

A "springing" POA is different. It only becomes effective when a specific event happens—typically when you become incapacitated. The document must clearly state how incapacity will be determined and who decides. The downside: springing POAs are harder to use because banks and other institutions often ask for repeated proof of incapacity.

What should a power of attorney include?

You don't usually need an attorney to create a POA, but it does need certain elements. At minimum: a date (so others know it's current), clear language describing what authority you're granting, and signatures from you and any required witnesses. Many states require notarization; it's worth doing even if yours doesn't, since it makes institutions more likely to accept it.

For a limited POA, include an end date. Without one, it can last indefinitely. Durable POAs have no end date unless you revoke them by giving written notice.

POA vs. court-appointed conservatorship

If you're hesitant to give someone a POA, another option is to ask the court to appoint a conservator or guardian. The court oversees them and can remove them immediately or pursue criminal charges if they misuse their authority. With a POA, by contrast, the person is only accountable to you (if you recover) or to your heirs after your death.

Disclaimer: These pages are created to inform and educate the public only. They are not legal opinions or advice. You do not have a client-attorney relationship with SeniorMag or any of its employees. Do not rely on information from this site as legal advice. Consult a lawyer before taking action based on anything you read here.

Creating a POA is simple enough that it usually doesn't require an attorney. However, it must contain certain required elements, and other elements are often included to protect the person granting the POA.

As with most legal documents, the POA must be dated. This is to let other parties know that the POA is currently effective.

2) For a limited Power of Attorney (POA), it is best to include a termination date. Without one, the POA can extend indefinitely. The only exception is a durable POA. For a durable POA, the only way to end it is to give notice of termination.

3) The POA should clearly state its specific circumstances and authority. For example, you might assign someone a POA to sign a particular contract or make certain types of decisions. Limiting the POA's scope ensures they only have the powers you intend to grant.
4) The POA must be witnessed. To ensure other parties accept the POA, it is highly recommended to have the document notarized.

Disclaimer: These pages are created to inform and educate the public only. They are not and should not be considered legal opinions or advice. You do not and cannot have any client-attorney relationship with SeniorMag or any of its employees. You should not act upon legal advice found on SeniorMag and are advised to seek professional counsel before taking any action based upon information found on this site.