What Is a Durable Power of Attorney

Written by S. Danilina and Fact Checked by The Law Dictionary Staff  

A durable power of attorney is an exclusive type of power of attorney. A durable power of attorney is distinctive from a regular power of attorney and allows the agent to act on the principal’s behalf beyond the incapacity of the principal. A durable power of attorney may be immediate or springing. The immediate power of attorney starts immediately after the durable power of attorney has been executed. The springing durable power of attorney goes into effect after a specific event occurs. For instance, it can be the disability of the principal. Durable powers of attorney are often created to deal with property or health care decisions.

When someone considers creating a durable power of attorney, it is important to choose the right agent. The agent should be a person that the principal trusts and who will not take advantage of the principal when she or he is incapacitated. The agent is often a family member or a friend of the principal.

A durable power of attorney has certain advantages. Before it, the only way to take care of the affairs of an incapacitated person was to appoint a guardian. Appointing a guardian is a complex and costly court proceeding. A durable power of attorney, on the other hand, is a very easy and inexpensive procedure that does not require a judicial proceeding.

All legal details of the durable power of attorney are covered in the Uniform Durable Power of Attorney Act (UDPA). All American states recognize some form of a durable power of attorney and versions of it vary from state to state. However, certain powers cannot be performed by the agent, such as the powers to create, edit or revoke a will, contract a marriage, vote or change insurance beneficiaries.

A durable power of attorney can be revoked or revised at any time as long as the principal is competent to make such a decision. If the principal is not competent, a durable power of attorney continues until the principal dies.

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