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What is a Durable Power of Attorney?

By Adam Hill
Updated May 16, 2024
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A durable power of attorney is a legal document or provision whereby one person may assign someone else to act in his place in matters of law or business. The person who authorizes the other to act on his behalf is known as the principal, while the other is called the agent. A durable power of attorney is so called because the agent can act on behalf of the principal, even if the principal becomes incapacitated, or otherwise unable to administer his own affairs. For a conferral of power of attorney to be considered durable, it must be explicitly stated that it is still valid, even if the principal becomes disabled or incapacitated.

In some instances, a power of attorney is legally null and void if the principal becomes disabled. While this can potentially save the principal from any unscrupulous acts by the agent, it can pose problems as well. In most cases, it is precisely when someone becomes incapacitated that a power of attorney is most needed, so that the person's finances can continue to be cared for and administered, among other reasons. The durable power of attorney was created to solve this dilemma.

There are some jurisdictions in which a durable power of attorney is called a health care power of attorney. This is because it often includes the authority to make important health care decisions, such as when to discontinue life support when the principal is terminally ill in a hospital. This leads to a possible problem, namely that it may be the case that a principal does not wish to grant such sweeping authority to an agent. Fortunately, a durable power of attorney allows a principal to delineate exactly which decisions the agent is empowered to make on his behalf, and which ones he cannot make. It is also possible to construct a durable power of attorney in such a way so that it will begin to take effect only in the event that the principal becomes disabled, to ensure that it will take effect when needed, but not before.

To guard against any wrongdoing or any false assumptions about the wishes of the principal, it helps if the agent is someone who the principal trusts implicitly. This may be a husband or wife, one of the principal's adult children, or perhaps a very close friend who the principal feels is above suspicion. In any case, a durable power of attorney lapses permanently upon the death of the principal.

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Discussion Comments
By Phaedrus — On Mar 17, 2014

I've heard some horror stories about unscrupulous caretakers or relatives gaining durable power of attorney over vulnerable people, so I'm very reluctant to authorize that sort of thing myself. One time I was in a bad car accident and had to spend several months in the hospital and a rehabilitation center. My wife had durable power of attorney during that time, but I wouldn't trust anyone else with that responsibility.

By RocketLanch8 — On Mar 17, 2014

When my mother-in-law had a stroke and spent time in a rehabilitation facility, my wife and I applied for durable power of attorney. The rehab facility director already had a "boilerplate" form we could fill out. Apparently it's a common practice for someone in the patient's family to gain durable power of attorney during an extended stay. We had to be able to write her monthly checks and make financial decisions while she was out of commission.

Fortunately, we didn't have to make any of those difficult medical decisions on her behalf, and she did return home. We still have durable power of attorney, but we now look at it as a last resort. If someone tries to scam her or take money without her permission, we can step in and do something. Otherwise, we don't bring it up.

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