Two Types of Power of Attorney

By David Carnes

Although powers of attorney documents serve many different purposes, they can be divided into two broad categories -- durable and non-durable. A power of attorney can be used to authorize another person to make medical decisions on your behalf or to manage your finances. Any power of attorney document that you execute is automatically revoked upon your death.

Parties

It takes two parties to create a valid power of attorney -- the principal and the agent. The principal is the person who delegates the authority to another to perform legal acts on his behalf, and the agent is the party who is authorized to perform these acts. The principal delegates authority to the agent by drafting and signing a power of attorney form. This form identifies the principal and specifies exactly which powers are delegated to the agent. Although not required in all states, it is a good idea to have your signature notarized in order to avoid challenges to the legitimacy of your grant of authority. Some states require you to use a government-drafted power of attorney form for certain purposes.

Revocation

Regardless of whether your power of attorney is durable or non-durable, you normally have the right to revoke it at any time. One exception is that principals who are mentally incompetent or unable to communicate cannot revoke their power of attorney. But under the laws of many states, a power of attorney automatically expires if you become incompetent, unless either the power of attorney form specifically states otherwise or the circumstances indicate that you intended your power of attorney to endure even if you become incompetent.

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Durable Power of Attorney

Because most power of attorneys are revocable, you cannot create even a durable power of attorney that cannot later be revoked. A durable power of attorney endures until the principal either dies or revokes the agent's authority -- but unlike non-durable powers of attorney, it does not automatically expire if the principal becomes incompetent. Although the form may or may not specifically state that the power of attorney is durable, it is easier to enforce if it specifically states that it will not expire even if the principal becomes incompetent. A durable power of attorney is commonly used by seriously ill patients to allow the agent to manage their affairs while they are unable to do so.

Non-Durable Power of Attorney

A non-durable power of attorney automatically expires under its own terms -- the principal doesn't have to die or revoke it in order for it to expire. Many types of non-durable powers of attorney exist. A power of attorney may, for example, authorize the agent to perform a specific act such as selling the principal's house while he is overseas; it will expire once the act is performed. Alternatively, it may expire on a particular date -- for example, a custodial power of attorney may empower an agent to perform legal acts on behalf of a minor child if his parents or guardians are incapacitated and expire on the child's 18th birthday.

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Power of Attorney Guidelines for State of Oregon
 

References

Related articles

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

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.

Automatic Power of Attorney Due to Health

You can't assume that a spouse or family member will automatically be able to act in your stead if you become incapacitated. However, you can confer this authority with a durable power of attorney created according to state law. If you set up a springing durable power of attorney, it "springs" into existence automatically if and when you become incapacitated.

Can a Person Give or Turn Over Her Power of Attorney to Someone Else?

Although a power of attorney involves two persons, it is not a contract and can be unilaterally revoked. The person making the document, termed the principal, uses the power of attorney to name an agent to act for her. A competent principal is free to revoke that authority at any time and confer it on another agent. The person named as agent can also decline to serve but cannot give or transfer her authority under the power of attorney to another.

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