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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Guidelines for Assuming Power of Attorney

References

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