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Create a document that authorizes another person to represent you, and that remains valid and effective even if you become incapacitated.
Whether you have unstable physical or mental health, are of old age, or are simply planning to move to another location for a longer period of time, it is good to make a durable power of attorney and authorize someone to act on your behalf when you are unable to do so.
This type of power of attorney provides additional protection for the principal since it remains effective even if the principal loses the legal capacity or otherwise becomes unable to act.
A durable power of attorney (DPOA) is a legal document one person, called the principal, uses to authorize another person, called the agent, to represent their interests before third parties.
A durable power of attorney is different from a regular power of attorney in a way that its validity doesn’t stop in case the principal becomes legally incapacitated or otherwise unable to represent themselves. Contrary to that, the non-durable power of attorney becomes invalid the moment the principal becomes incapacitated.
This document is mostly used in the following situations:
The durable power of attorney form usually includes information about the principal and the agent, the scope of the agent’s authority, and the principal’s signature.
The term durable refers to the duration of the validity of the power of attorney. According to the legal definition of durable power of attorney, the document will remain valid even if the principal loses the capability to make decisions due to a lack of legal capacity.
This also means that the durable power of attorney remains valid until the principal revokes the power of attorney or passes away.
The Uniform Law Commission enacted the Uniform Power of Attorney Act in 2006. The main idea was to create a set of laws that would govern and standardize the creation of powers of attorney among the states that adopted the UPOAA.
In practice, this means that a power of attorney created in one of the UPOAA states can be used in another UPOAA state.
In total, 28 US states have enacted the UPOAA so far:
The main difference between a durable and general power of attorney is the period of its validity.
The (financial) durable power of attorney will remain valid even if the principal becomes incompetent to make decisions on their own to the extent that they lose their legal capacity. This can happen in situations where the principal is diagnosed with dementia or another similar condition.
Contrary to that, the non-durable power of attorney becomes invalid in the event that the principal loses their legal capacity.
Therefore, the durable power of attorney is more suitable if the principal wishes to authorize someone to represent them on a long-term basis.
The main differences between a durable and medical power of attorney are the purpose it is used for and the moment of document activation.
The durable power of attorney is a document that is usually used for financial, legal, and other non-medical matters, such as business transactions, property management, and more.
The medical power of attorney is almost exclusively used to authorize an attorney-in-fact to make medical decisions on behalf of the principal.
Another difference is that the durable power of attorney usually becomes active the moment the principal signs it, while the medical power of attorney usually activates the moment the principal becomes unable to make medical decisions on their own.
However, the principal can also use the durable power of attorney for healthcare matters.
The durable power of attorney template can include the following agent’s powers:
Besides the powers, the agent also has certain liabilities when representing the principal:
Although the durable power of attorney (durable POA) remains valid even if the principal becomes incapacitated, there are a few conditions under which the document gets terminated:
To get a legally binding and valid power of attorney, you should complete the following steps:
Here, you should name the attorney-in-fact or the agent. This should be a person who has the legal capacity to represent you, who is located near the place where a certain action must be taken, and who is willing to represent you.
Moreover, you should choose a trustworthy person, especially if they will have the power to make financial or legal decisions on your behalf.
In this section, you can also name the successor agent, who will only act in case the primary agent is not able to represent you.
After determining the agent, you should precisely define the scope of their authority. The scope of authority mostly depends on the purpose for which you wish to issue the power of attorney.
You can give the general authority, where the agent will be able to take all the actions that are in your interest. Another option is to list out all the authorities and actions the agent is allowed to take on your behalf. The third solution is to provide general authority and list out only the actions they are not allowed to take.
Here, you can enter all the details in the form and download the durable power of attorney PDF file.
Our interactive document builder will guide you through the whole process by asking you relevant questions about the document and populating it accordingly. At the end of the process, you will have a ready-to-sign form that is in line with all the legal requirements for this type of document.
Depending on the state in which you are planning to issue and use a durable power of attorney, you should check the signature and notary requirements. Some documents must be acknowledged by one or two witnesses; some also require the document to be notarized, while some states don’t have any requirements of this type.
The state laws can also limit who can witness the signing of a DPOA by determining the categories of people who cannot serve as witnesses.
After completing the document, the principal should keep at least one original copy of the durable power of attorney in their possession. However, they should also make sure to give one copy to the attorney-in-fact so they can prove their capacity to any third party they are interacting with on the principal’s behalf.
