Power of Attorney Vs. Durable Power of Attorney

by Jeff Franco J.D./M.A./M.B.A.
Durable powers of attorney extend authority after the principal becomes incompetent.

Durable powers of attorney extend authority after the principal becomes incompetent.

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A power of attorney (POA) legally assigns authority to an agent to act on your behalf in matters that you specify within the document. There are different types of Powers of Attorney that provide agents with varying scopes of authority. However, you can draft any type of power of attorney to be durable. A durable power of attorney automatically extends the duration of the POA in the event you are mentally incompetent at the time it will expire.

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State POA Requirements

Each state has the authority to establish laws that dictate the necessary components of a legally enforceable power of attorney. In an attempt to create uniformity throughout the country, the National Conference of Commissioners on Uniform State Laws drafted the Uniform Power of Attorney Act (UPOAA). The UPOAA has no legal authority, but it does provide a model law that state legislatures can adopt. The state of Florida, for example, adopts the UPOAA. As a result, Florida will not enforce a power of attorney unless the principal signs the document in the presence of a notary, and it includes the contemporaneous signatures of at least two witnesses.

Types of POAs

Three of the more common types of power or attorney are general, special and health care powers or a medical power of attorney. As the name implies, a general power of attorney provides the agent with extensive authority to act on your behalf in a wide range of situations, such as your personal banking, investment, insurance and real estate transactions, to name just a few. A special power of attorney restricts the scope of the agent's authority by outlining the specific transactions your agent has authority over. The health care power of attorney is also very precise in that your agent only has the authority to make medical treatment decisions on your behalf in the event you are mentally incompetent or otherwise unable to make decisions for yourself.

Making It Durable

You can choose to make any power of attorney durable by including language in the document that extends the duration of your agent’s authority in the event you are mentally incompetent at the time it expires. In this case, the POA remains legally enforceable until you regain mental competency. In general, a non-durable power of attorney automatically ends when you are considered incompetent, however, some states treat all powers of attorney as durable unless the document expressly prohibits it.

Springing Durable POAs

In many jurisdictions, a durable power of attorney is effective immediately upon it's signing by the relevant parties. If you prefer that your agent not have authority immediately after creating the power of attorney, you can draft the document so that it’s a “springing” durable power of attorney instead. Springing durability delays the effective date of the power of attorney until the date you specify within the document or upon the occurrence of an event. For example, if you create a durable power of attorney but prefer that your agent have no authority until you reach the age of 75, drafting a statement in the power of attorney delaying its effective date until your 75th birthday transforms it into a springing durable power of attorney.