Definitions of Durable and Non-Durable Power of Attorney

By Tom Streissguth

A power of attorney, or POA, grants an individual (“agent”) the legal authority to make decisions on behalf of another individual (“principal”). The decision can involve legal, financial or health matters. The power of attorney may be limited in scope; it may also be more general, allowing the agent a wide range of legal powers. A durable power of attorney refers to the agent’s authority when the principal is incapacitated.

Non-Durable POA

A non-durable power of attorney, or a general power of attorney, does not allow the agent to act in the interests of the principal if the latter becomes incapacitated. Generally, a non-durable power of attorney grants a limited scope of action to the agent, whom the principal may simply need to carry out a single task. An agent acts as the principal’s legal representative in matters that the principal is unable to attend to personally. These can be revoked by the principal at any time or automatically cease effectiveness once the matter has been completed. If the principal becomes incapacitated, the non-durable POA becomes invalid.

Durable POA

A durable power of attorney allows the agents to continue acting on the principal’s behalf even if the principal becomes incapacitated. Individuals planning retirement care, for example, will grant a durable power of attorney to someone whom they trust to make decisions regarding medical treatment and, possibly, whether or not to continue life support. One form of durable power of attorney comes into effect only in the event that the principal does lose the ability to make important decisions. A power of attorney that is triggered by a specific event in this way is also known as a “springing” power of attorney.

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Legal Provisions

State laws govern how you, as the principal, should draw up a power of attorney document. Some states require language that makes clear what kind of POA you are writing; other states -- such as Pennsylvania -- make the legal assumption that all POAs are durable unless otherwise noted within the document. To grant a durable power of attorney, you must be at least 18 years of age, fully understand the provisions of the document and have at least one witness to your signature. If a durable power of attorney concerns the handling of property or real estate, you should have the document filed or recorded by the local court clerk. In order to carry out responsibility on your behalf, the agent should have possession of the original document.

Incapacity and Revocation

The durable power of attorney should also have a provision explaining how incapacity will be determined. You should allow for at least one certified doctor’s statement that you are no longer capable of handling your affairs. You may also have a third party verify this event and include a provision under which the durable power of attorney may be held as no longer valid, for example, in cases of the agent's malfeasance, criminal acts or incompetence. A principal can always revoke a non-durable power of attorney, with or without cause.

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Power of Attorney & Mental Illness
 

References

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