Can a Power of Attorney Be Non-Durable & Non-Revocable at the Same Time?

By Elizabeth Rayne

A power of attorney, or POA, is a legal document that grants another person the authority to manage finances on your behalf. The person granting the authority is known as the principal while the agent, or attorney-in-fact, acts on behalf of the principal. The principal may give the agent power to perform only specific tasks, such as filing taxes, or grant broad authority to take care of all of the principal's financial matters. Because non-revocable POAs are generally reserved for business circumstances, personal POAs are rarely non-revocable.

Power of Attorney Overview

In order to create a power of attorney, you must have mental capacity and be over 18 years old. You may appoint any competent person over 18 to serve as your agent -- someone you find trustworthy and responsible. The duties of the agent are limited to what is set out in the POA document. The agent must always work in the best interests of the principal. Depending on how the document is drafted, the agent may continue to have authority if you become incompetent.

Durable Power of Attorney

A power of attorney may be durable, meaning the agent's authority continues even if the principal later becomes incapacitated. Conversely, a non-durable POA terminates as soon as the principal no longer has mental capacity. Most POAs are durable, primarily because families want to avoid the burden and costs associated with the alternative: having a court appoint a guardian to take care of finances when an individual becomes incapacitated. With both a durable and non-durable POA, the principal may revoke the agent's authority at any time, so long as the principal has the mental capacity to do so.

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Revoking a Power of Attorney

A power of attorney may be revoked at any time by the principal, so long as the principal is competent at the time of revocation. Even with durable POAs that continue after the principal is incompetent, the principal may end the agent's authority at any time before the principal loses mental capacity. Generally, the principal tells the agent in writing that his power to act under the POA is revoked. The revocation is effective as soon as the letter is received, and the agent instantly loses authority to act on behalf of the principal.

Termination Provisions

While a principal has the power to terminate a POA at any time, the document may also contain provisions that automatically terminate the agreement in certain circumstances. It may provide that the agreement terminates on a particular date or after a particular event occurs, such as the sale of a piece of property. Similarly, non-durable POAs expire when the principal becomes incapacitated. Some states also provide that a POA that grants authority to a spouse is automatically terminated when the couple divorces.

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What Is a Revocable Power of Attorney Form?


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Power of Attorney Vs. Durable Power of Attorney

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.

What Is an Irrevocable Power of Attorney?

A power of attorney is a written document in which you, the principal, give a trusted person, or agent, the right to handle financial and property affairs on your behalf. One aspect of a power of attorney is that it can be made revocable or irrevocable. With a revocable power of attorney, you can revoke the powers granted to the agent at any time; by making the power of attorney irrevocable, you are giving up your right to revoke those powers.

Power of Attorney & Mental Illness

One way you can help a relative or friend living with mental illness is to become his agent through the creation of a mental health power of attorney. A mental health POA is a legal document that makes you a substitute decision maker in situations where your loved one is unable to make treatment and self-care decisions due to a recurrence of mental illness. The mental health POA contains language reflecting your loved one's treatment preferences.

Power of Attorney

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