Difference Between the Durable and Regular Power of Attorney

by Cindy Hill
    A durable power of attorney can remain effective in the event of debilitating illness.

    A durable power of attorney can remain effective in the event of debilitating illness.

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    A power of attorney is a means by which by one person, called a principal, authorizes another person, called an attorney-in-fact or agent, to legally undertake some action or business of the principal's on the principal's behalf. A durable power of attorney is a special form of authorization that allows the attorney-in-fact to continue acting on the principal's behalf even if the principal is ill or unable to communicate.

    Extent of Authorization

    An ordinary power of attorney can be general, limited or specific. A general power of attorney authorizes the attorney-in-fact to engage in any legal business on behalf of the principal. A limited power of attorney can place restrictions on an attorney-in-fact's general powers. A specific power of attorney can authorize an attorney-in-fact to act for one particular event, like a real estate closing or contract signing where the principal may be out of town or unavailable. Durable powers of attorney can be created only for the purposes delineated by state statute in the jurisdiction in which they are executed and used, and may require the use of specific language set out in the state statute.

    Capacity

    An ordinary power of attorney is effective only when the principal has the legal capacity to act. When the principal is injured, sick or disabled to the point of being unable to communicate, an ordinary power of attorney is no longer legally effective. The authority conveyed by a durable power of attorney continues to hold legal effect after the principal is incapacitated to the point of being unable to communicate his own wishes. The document creating a durable power of attorney can be drafted so that the power of attorney takes place immediately and continues on into the principal's disability, or it can specify that the power of attorney takes effect only upon the principal becoming incapacitated.

    Revocation

    An ordinary power of attorney can be revoked by the principal at any time while the principal has legal capacity to act. An ordinary power of attorney is automatically revoked when the principle becomes incapacitated. A durable power of attorney can be revoked by the principal any time while he has the legal capacity to act, but after the principal becomes incapacitated, a person of interest to the principal, such as a family member or business associate, can petition the local probate court to be appointed conservator of the principal. If the court appoints a conservator, that conservator can then petition the probate court to revoke a durable power of attorney.

    Health Care Directives

    One use for a durable power of attorney authorized by statute in most states is to give an attorney-in-fact authorization to make medical treatment decisions for the principal when the principal cannot communicate. However, states such as Illinois also have specific health care surrogate appointment laws that allow a medical patient to appoint another individual to make medical treatment decisions in his stead without having to complete a formal durable power of attorney form, according to the Southern Illinois University Self Help Legal Center. An ordinary power of attorney or a durable power of attorney authorizing the attorney-in-fact to engage in monetary transactions may still be necessary to insure that other actions can continue while a medical patient is incapacitated.

    About the Author

    A freelance writer since 1978 and attorney since 1981, Cindy Hill has won awards for articles on organic agriculture and wild foods, and has published widely in the areas of law, public policy, local foods and gardening. She holds a B.A. in political science from State University of New York and a Master of Environmental Law and a J.D. from Vermont Law School.

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