Difference Between the Durable and Regular Power of Attorney

By Cindy DeRuyter, J.D.

Difference Between the Durable and Regular Power of Attorney

By Cindy DeRuyter, J.D.

Power of attorney forms are common estate planning documents used when planning for future periods of lifetime incapacity. Powers of attorney, whether for healthcare or financial matters, designate one or more authorized agents to make decisions while the person who granted the power is living. You can create powers of attorney that are nondurable or durable. Under a nondurable power of attorney, sometimes referred to as a regular power of attorney, the named agent's authority ends if the person who granted the power becomes incompetent or incapacitated. Durable powers of attorney, on the other hand, remain in effect regardless of your mental competence or capacity.

One person pointing to document and other person using pen to point to same document

Reasons to Create Powers of Attorney

People create power of attorney documents for various reasons. One of the most frequent uses for a durable power of attorney is as part of an estate planning strategy. That's because durable powers of attorney can eliminate the need for someone to have to go to court to establish a guardianship or a conservatorship over your affairs.

When you create a power of attorney for financial matters, you can authorize a trusted family member, friend, or a professional fiduciary to handle real estate, banking, investment, insurance, and many other types of transactions on your behalf.

Powers of attorney for healthcare, included in healthcare directives in many states, authorize your named agent(s) to make medical decisions for you and to share and obtain medical information.

Deciding Between Durable and Nondurable

If you are creating powers of attorney as part of your estate planning, you may want to consider using durable powers of attorney. If you create a nondurable power of attorney but later become incapacitated, your named agent(s) will no longer have authority to handle your affairs for you.

Nondurable powers of attorney are more common in situations where someone needs to appoint an agent for a limited time to handle certain types of transactions. For example, if you are selling or buying a home but cannot attend the closing, you might consider giving someone a nondurable power of attorney to sign the real estate closing documents on your behalf.

Other Considerations

Giving someone else power of attorney over your finances or healthcare is not a decision you should make lightly. Carefully consider your options and choose someone you believe will honor your wishes, act on your behalf, and make decisions aligned with your values and that are in your best interests at all times. You can name someone as your primary agent, but you can also designate one or more successor agents to act if the first-named agent(s) dies, resigns, or is otherwise unable to serve.

Acting as someone else's agent under a power of attorney is a big responsibility, so you may also want to talk to the person or people you are considering naming to find out if they are willing to serve as your agent(s).

How to Create Powers of Attorney

If you decide to create a power of attorney document, you should understand your state's requirements to do so. Each state's laws dictate what information you must include in your power of attorney to make it valid.

You can work with an estate planning attorney in your state to create your power of attorney forms. Alternatively, you could obtain forms from an office supply store or from your state's Attorney General. If you go that route, you need to complete the forms on your own. Another option is to work with a reputable online legal services provider to create and personalize professional-looking power of attorney forms.

Whether you create a durable or nondurable power of attorney, take the time to understand the scope of authority you are granting and understand your rights to revoke or amend the document in the future.

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.