What is a durable power of attorney?

In short, a power of attorney is a legal document that authorizes another person to make decisions for you. Powers of attorney (or POAs) can vary greatly depending on your situation.

Some POAs give the agent (the person you give legal authority to make decisions on your behalf, also known as the attorney-in-fact) great control over everything from your healthcare decisions to your finances. Others limit the agent’s authority to one specific area, such as managing your bank accounts. 

Powers of attorney have several uses – for example, they can make it easier for others to make financial decisions on your behalf or take care of your affairs while you’re out of the country. POAs are most commonly used, though, to give someone else (usually a family member) the authority to manage your affairs when you become elderly or ill and unable to manage them yourself.

There are three main types of power of attorney:

If you are considering between the different types of POAs, it may be helpful to speak with an estate planning attorney to figure out what type of power of attorney is best for your needs. (And depending on your goals, remember that you could have more than one power of attorney).

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Normally, powers of attorney expire once you become mentally incapacitated. Durable powers of attorney, sometimes called a general durable power of attorney, are different because they are drafted in a way that allows your agent to retain their authority regardless of your mental state. 

What is an example of a durable power of attorney?

As an example, if you have a durable power of attorney and begin to experience dementia, your durable POA remains in effect even though your mental state has considerably changed.

Indeed, if you are setting up a healthcare power of attorney (sometimes also called a medical power of attorney), it often makes sense to makes these POAs durable. That way, your agent can make any necessary decisions about your medical treatment in your best interests rather than having the POA expire.

Let’s say you have a non-durable POA that allows a trusted family member or close friend to manage your bank accounts to make it easier for them to conduct financial transactions on your behalf. If you suddenly got in an accident that left you in a state of limited mental capacity, that power of attorney would no longer be valid because you are now incapacitated. 

But, if you had signed a durable power of attorney, your agent’s authority over your bank accounts would stay the same because durable powers of attorney remain valid regardless of your mental state.

The same would be true for a durable power of attorney for healthcare, and other POAs.

There are two kinds of durable POAs – one type is in effect both before and after you are incapacitated, and the other type (known as a springing power of attorney) goes into effect upon incapacitation. 

Below you can see the difference in the duration of a regular power of attorney, durable POA, and springing POA if an injury that leads to incapacitation occurs:

What constitutes incapacitation can differ by state and isn’t always clear. Texas, for instance, requires a doctor's examination which finds that the principal can no longer manage their own finances and that the doctor certifies to in writing.

As such, it’s important to clearly describe the level of incapacitation needed for your power of attorney to take effect when drafting a springing POA. 

For example, you could include in your POA that your primary care doctor must deem you mentally incompetent due to a medical condition in writing, or that two different doctors must agree in writing that you are no longer able to make medical decisions for yourself. 

An estate planning attorney can help you navigate the ins and outs of springing and durable POAs to make sure your documents accurately reflect your wishes.

With the various types of powers of attorney, you may be wondering what is a durable power of attorney used for and what are the advantages?

A durable POA allows your agreement to remain in effect under circumstances when an ordinary power of attorney would no longer be valid. Creating a durable POA will therefore enable you to better prepare for a decline in your health, potential accidents, or declining mental capacity that would leave you unable to understand the consequences of your decision making. 

Like a regular power of attorney, durable POAs can have multiple uses. If you’re going under anesthesia for a surgical procedure, your healthcare POA must be durable to ensure your agent can make decisions for you while you’re unconscious. In these sorts of temporary situations, you can include a condition that the power of attorney expires when you regain the ability to make your own decisions.

Since incapacitated people can’t enter new power of attorney agreements, if you lose your mental capacity without a durable POA in place, your family will have to go to court to regain control over your affairs. The court may appoint an outsider as your guardian or conservator in such a scenario, which would leave your loved ones with very little control. 

A key advantage to setting up a durable POA is that it allows you to avoid that type of situation and control who manages your affairs.

So, how long is a durable power of attorney good for, and when does it expire? Like non-durable powers of attorney, durable POAs expire upon your death. 

Keep in mind that your agent can resign at any time. If you don’t list a successor agent in your power of attorney, then the agreement will expire upon the agent’s resignation since there is no one else authorized to carry it out. 

Since you can’t create a new power of attorney once you’re incapacitated, if your agent resigns while you’re incapacitated and you don’t have a successor agent, the court could place you in a guardianship or conservatorship and designate an outsider to manage your affairs.

Talk with your estate planning attorney about successor agents and other safeguards to ensure this doesn’t happen.

You can revoke any kind of power of attorney at any time as long as you are mentally competent. 

The process of revoking is simple – make sure it’s in writing, and be sure to notify the institutions your attorney-in-fact frequently dealt with.

That being said, you cannot revoke a POA once you are incompetent. So if you do become incapacitated, you won’t be able to revoke your Durable POA without going to court. Therefore, it is crucial to choose an agent you trust completely to act in your best interest, especially for a durable power of attorney. 

Durable powers of attorney and living wills are sometimes confused because they can be used together, although they are separate documents that serve different purposes.

A living will, which is a type of advance directive, outlines your wishes for end-of-life medical care in the scenario that you cannot make those decisions for yourself. A durable POA, by contrast, gives someone else the authority to make those decisions.

Additionally, remember that someone could execute a durable financial power of attorney document granting a close friend or family members limited powers such as paying bills or handling other financial matters, and such financial POAs would have nothing to do with health care decisions.

So, what is a durable power of attorney and how long does a durable power of attorney last?

A durable POA is a type of POA that stays in effect even if you become incapacitated, unlike other POAs.

A durable POA can be an essential tool alongside other estate planning documents to ensure your affairs are taken care of when you don’t have the capacity to do so. An estate planning attorney can help you set up a power of attorney that works best for your circumstances.