Definitions of Durable and Nondurable Power of Attorney

By Larissa Bodniowycz, J.D.

Definitions of Durable and Nondurable Power of Attorney

By Larissa Bodniowycz, J.D.

A power of attorney (POA) is a person who has legal authority to act on behalf of someone else. This role is highly respected and also critical to the person who grants such control. There are two general types of a POA: durable and nondurable.

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Power of Attorney Terminology

The person who grants a power of attorney is called a “principal." The person a principal authorizes to act on the principal's behalf is called an “agent."

A POA can be used for a variety of purposes, but generally allows an agent to act for a principal when the principal is not able to manage his or her own affairs either due to health or availability. A POA may be for a limited and specific purpose or may be a general authorization to handle the principal's financial or health affairs.

Nondurable Power of Attorney

A nondurable POA provides limited authority to act. A nondurable POA is typically only directed to last for a specific period of time and/or created for a particular transaction. Once that transaction or time period is complete, the nondurable POA will terminate. A principal can also revoke a nondurable POA at any point, for any reason. Additionally, the position will terminate in the event the principal becomes incapacitated. Under a nondurable POA, an agent cannot act on the principal's behalf if the principal becomes incompetent.

There are countless reasons why a principal may create a nondurable POA. Examples include scenarios such as the principal is out of town and needs an agent to sign a document while he's gone, or the principal may need an agent to handle a real estate transaction. Another example is if the principal is a college student, she may decide to grant her parents the ability to manage her affairs while she's studying abroad. Ultimately, you can create a nondurable POA for a wide range of legal transactions and purposes.

Durable Power of Attorney

A durable POA is broader. It takes effect when a principal becomes incapacitated. A durable POA is so-named because it will remain intact even if the principal loses the ability to manage his or her own affairs. A principal can set up a durable financial POA to manage financial affairs or a durable POA for health care to manage medical affairs (also known as a healthcare directive).

A principal might set up a durable POA as part of his or her retirement plan in case the principal becomes incapacitated and needs the agent to make medical decisions, such as the decision to continue or terminate life support. A principal may also execute a durable financial POA to allow an agent to pay bills, manage financial accounts, and handle the principal's investments in the event the principal becomes incapacitated.

The principal can revoke the durable POA if the principal regains his mental or physical capacity to do so. Otherwise, the durable POA will terminate automatically when the principal passes away.

In many states, to create a durable POA, the POA document needs to explicitly say that the POA is durable. Otherwise, the POA will default to a nondurable POA.

The requirements for a durable or nondurable POA vary by state so be sure that the POA you prepare or have prepared on your behalf is specific to the state where you reside.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.