Durable power of attorney
Summary
Durable power of attorney is the legal right to handle financial, legal, or medical matters for another person even after that person can no longer make or communicate decisions for themselves. This article explains the difference between durable and non-durable power of attorney. It then describes the main kinds of durable power of attorney and says how durable power of attorney can be changed or revoked.
What is durable power of attorney?
Durable power of attorney is the legal right to handle financial, legal, or medical matters for another person even after they can no longer decide or communicate for themselves. This is done in a written legal document, which in many states needs to be signed by witnesses and a notary.
Durable power of attorney can be financial/general or medical. The individual who gives the other person power of attorney is called the principal. The person who receives the power of attorney is called an agent, attorney-in-fact, or medical proxy (in the case of medical power of attorney). The word “attorney” in this case simply means “someone who acts on another person’s behalf.”
What kinds of durable power of attorney are there?
There are two main kinds of durable power of attorney: durable financial power of attorney, which is also known as general durable power of attorney, and medical power of attorney.
Durable financial/general power of attorney
Durable financial/general power of attorney gives the agent the ability to make financial and legal decisions for the principal. Some of the common activities that the agent might carry out for the principal are:
- Signing checks, paying bills, and handling other everyday financial transactions
- Filing and paying taxes
- Hiring a lawyer
- Investing money
- Managing retirement accounts
When the principal fills out their power of attorney form, they can say which types of power they want their agent to have. Some may only give their agent the power to carry out everyday transactions such as banking. Others may want to include powers covering a broader range of financial and legal matters. Financial/general power of attorney can start as soon as the form is signed.
One kind of power the durable financial/general power of attorney does not usually give the agent is the power to make decisions about medical matters. This is called durable medical power of attorney, and it is almost always put in a separate document.
Medical power of attorney/durable power of attorney for healthcare
Medical power of attorney, also known as a durable power of attorney for healthcare, gives the agent the ability to make decisions about health care and medical treatment for the principal after the principal has become unable to decide or communicate decisions for themselves.
Medical power of attorney starts when the principal can no longer make or communicate decisions for themselves, no matter when the form is signed. Until that point, the principal will always be the one making their own health care and medical decisions.
What’s the difference between durable and non-durable power of attorney?
Durable power of attorney is permanent. It lasts even when the person who authorized it can no longer decide or communicate for themselves. The word “durable” means lasting, or enduring.
Non-durable power of attorney is temporary. It ends as soon as the principal becomes unable to decide or communicate for themselves. A person might use non-durable power of attorney if they are temporarily unavailable or unable to sign checks or carry out other transactions for themselves. For instance, they might be confined to bed rest, or they might be in the military and often overseas. This kind of power of attorney is not generally considered part of estate planning or end-of-life planning.
Can durable power of attorney be changed or taken back (revoked)?
The only way for a person to change a power of attorney is to take back, or revoke, the document they already have and create a new one.
A person can revoke the power of attorney at any time, as long as they are still mentally competent and physically capable. There are many situations where they might want to do this. For example,
- They may have filled out the power of attorney form years earlier and now want to either give their agent different powers or name a different agent.
- They may have moved to a different state. It is best to create a new power of attorney in this case, as the one from the previous state may not be accepted.
- They may have married or divorced and want to change the status of their new or former spouse.
The best way for the principal to revoke a power of attorney is to fill out and sign a document called a Notice of Revocation.1 If they plan to name a different agent in the new document, the principal needs to tell the former agent that they no longer have power of attorney. They also need to tell every person and institution that may have been interacting with the former agent, and give them a copy of the Notice of Revocation. Otherwise, those individuals and institutions may continue to work with the original agent.
Once an existing power of attorney is revoked, the person can draw up a new power of attorney.
Related information
Advance directives
Basic legal documents
Decisions related to aging and the end of life
Living wills
Medical power of attorney
Overview of legal documents
