Power of Attorney Vs. Durable Power of Attorney

By Jeff Franco J.D./M.A./M.B.A.

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.

State POA Requirements

Each state has the authority to establish laws that dictate the necessary components of a legally enforceable power of attorney. In an attempt to create uniformity throughout the country, the National Conference of Commissioners on Uniform State Laws drafted the Uniform Power of Attorney Act (UPOAA). The UPOAA has no legal authority, but it does provide a model law that state legislatures can adopt. The state of Florida, for example, adopts the UPOAA. As a result, Florida will not enforce a power of attorney unless the principal signs the document in the presence of a notary, and it includes the contemporaneous signatures of at least two witnesses.

Types of POAs

Three of the more common types of power or attorney are general, special and health care powers or a medical power of attorney. As the name implies, a general power of attorney provides the agent with extensive authority to act on your behalf in a wide range of situations, such as your personal banking, investment, insurance and real estate transactions, to name just a few. A special power of attorney restricts the scope of the agent's authority by outlining the specific transactions your agent has authority over. The health care power of attorney is also very precise in that your agent only has the authority to make medical treatment decisions on your behalf in the event you are mentally incompetent or otherwise unable to make decisions for yourself.

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Making It Durable

You can choose to make any power of attorney durable by including language in the document that extends the duration of your agent’s authority in the event you are mentally incompetent at the time it expires. In this case, the POA remains legally enforceable until you regain mental competency. In general, a non-durable power of attorney automatically ends when you are considered incompetent, however, some states treat all powers of attorney as durable unless the document expressly prohibits it.

Springing Durable POAs

In many jurisdictions, a durable power of attorney is effective immediately upon it's signing by the relevant parties. If you prefer that your agent not have authority immediately after creating the power of attorney, you can draft the document so that it’s a “springing” durable power of attorney instead. Springing durability delays the effective date of the power of attorney until the date you specify within the document or upon the occurrence of an event. For example, if you create a durable power of attorney but prefer that your agent have no authority until you reach the age of 75, drafting a statement in the power of attorney delaying its effective date until your 75th birthday transforms it into a springing durable power of attorney.

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Two Types of Power of Attorney



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Power of Attorney in AZ

Occasionally, an individual might want to authorize another person to act on his behalf, sometimes out of convenience, for estate planning purposes, or as a protective measure in the event of incapacity. Whatever the reason, Arizona makes it easy for residents to grant such authority with an instrument known as a power of attorney. With a POA, you can give a third party the power to make financial decisions for you. The authority you give that person can be as broad or as limited as you wish.

How to Draw Up Power of Attorney Papers

When you execute a power of attorney in favor of an agent, you are authorizing the agent to perform legal acts, such as consenting to medical treatment, that only you would be able to perform otherwise. A general power of attorney authorizes your agent to perform any legal act that you are entitled to perform, while a specific power of attorney authorizes him to perform only specific acts. Power of attorney laws differ slightly from state to state.

What Is the Difference Between General Power of Attorney and Limited Power of Attorney?

A power of attorney authorizes another person, referred to as your attorney-in-fact, to act for you, the principal, when you are unable, unwilling or incapable of acting on your own. The power can apply to a particular transaction or under a widespread host of circumstances. The type of power of attorney you execute will govern the types of transactions covered by it and often the time period during which it may be used.

Power of Attorney

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