A Durable Power of Attorney is a form that allows a person, most often elderly (known as the “Principal”) to appoint a close friend or relative (this person is known as the “Agent”) to oversee legal and financial matters on their behalf. The term “Durable” implies that the Agent’s responsibilities will stay intact if the Principal becomes incapacitated.

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What is a Durable Power of Attorney?
Durable POA vs General POA
Medical Decisions
Agent Acceptance
Authorizing (Signing)
Where to File
State Laws
How to Write

What is a Durable Power of Attorney?

A Durable Power of Attorney (form) is for anyone wanting another person to handle matters on their behalf when incapacitated. It’s by far the most popular out of all the power of attorney types because it has the “durable” (allows the powers given to the agent to remain valid in the event of Principal’s incapacitation) aspect, which most people are looking for when creating a power of attorney.

A Durable Power of Attorney is also referred to as the following:

Durable POA, Dual Power of Attorney

A Durable power of attorney allows you to give the following powers to your agent simply by initializing next to the stated clause in your durable (POA) form:

Banking
Lending/Borrowing
Safe Deposit Box
Government Benefits
Retirement Plan
Taxes
Legal Advice and Proceedings
Real Estate
Personal Property
Gifts
Insurance

Durable POA vs General POA

Both forms allow for the principal to select someone else to act in their behalf. Although, the durable allows for the relationship to continue in the event the principal is not able to think competently any longer. This could be due to a multitude of reasons most commonly to Alzheimer’s Disease, dementia, coma, or any condition that would severely impair the mind of the principal.

If the principal would rather have their agent(s) no longer have the power to act on their behalf in the event they are incapacitated, but possess the full responsibility while they are of sound mind, the principal will want to fill-in a general financial power of attorney.

Authorizing a Power of Attorney

In most States, it requires either the signature of two (2) witnesses (that are not related to the principal) or a notary public. In some States both are required (two (2) witnesses and a notary public). Your durable power of attorney is a very serious form, therefore States go to great lengths to ensure that when the form is completed that it is to the wishes of the principal.

Agent’s Acceptance of Appointment

At the end of the form the Agent must read and acknowledge the power that they have and how important their position is for the principal. This addendum is recommended to be attached as it is required in some States.

Medical Decisions

If you need medical powers to be apart of your durable power of attorney, you need to complete a Medical Power of Attorney so that you can instill your wishes in the form in addition to having a trusted person make the best decisions on your behalf. The durable form does not cover health care related decisions, only financial.

In addition, the medical power of attorney contains a Living Will, (the combination is legally referred to as the Advance Directive) and allows you to make end of life decisions. Such decisions would include whether or not you would like to have food, hydration, artificial breathing, and if you would like your organs to be donated after your death.

Where to File Your Form?

Your Durable Power of Attorney, and any copies, are to be held by the parties involved (Including the Principal, Agent(s), and any third parties such a financial institution. It is recommended to have a copy immediately forwarded to the principal’s attorney after singing, but otherwise the form is left with the agent and their immediate family.

Some States have a department where the principal may opt to send the document after it has been completed where it can be accessed at anytime.

State Laws

How to Write a Durable Power of Attorney

Step 1 – Principal and Agent

Enter the following in the first (1st) paragraph enter the date of the agreement and the:

Principal’s full name, street address, city, and State;
Attorney-in-fact’s full name, street address, street address, city, and State.

Step 2 – Effective Date

Under the heading EFFECT DATE initial either if the principal would like to have the powers be available to the attorney-in-fact immediately or only when the incapacitation should take place.

Step 3 – Powers

Under most State laws, the principal will have to initial next to each power they are granting to their agent. In our example, the Principal is only allowing the agent to handle powers related to banking, therefore the Principal only initialed accordingly next to “Banking”.

Step 4 – Governing Law

Enter the State the principal is a resident.

Step 5 – Signatures

The signature of Principal must be must be inscribed and at least 2 witnesses shall attest to the document by giving their signatures and permanent address. It is recommended to have the document Notarized, as many states require a Durable Power of Attorney to be notarized.

Step 6 – Agent’s Acceptance

The last step is very important, as it gives testimony to the Agent accepting the powers given in their responsibility. The Agent must print his/her name and inscribe their signature. Once again, this document should be notarized along with the Durable Power of Attorney.

Durable Power of Attorney Form