What Is a Durable Power of Attorney?
A durable power of attorney is a power of attorney that keeps working if the person who signed it (the principal) later becomes unable to make decisions. A non-durable power of attorney ends at that point, and a "springing" power of attorney takes effect only when a stated event, such as incapacity, happens. Whether a power of attorney is durable by default, how it must be signed, and when it ends are set by each state's law, and every power of attorney ends when the principal dies.
What the law says
- A durable power of attorney stays in effect even if the principal becomes disabled or incapacitated; an ordinary (non-durable) power of attorney ends when the principal becomes unable to make their own decisions. North Dakota Legal Self Help Center, Instructions for General Durable Power of Attorney
- A financial power of attorney made to plan for future incapacity, such as dementia, is typically durable. CFPB, What is a power of attorney (POA)?
- Example (Virginia): under the state's Uniform Power of Attorney Act, a power of attorney is durable unless it expressly says it ends when the principal becomes incapacitated; "durable" is defined as not terminated by the principal's incapacity. Code of Virginia §§ 64.2-1600 and 64.2-1602
- Example (Washington): state law says a power of attorney ends when the principal becomes incapacitated unless the document contains words such as "This power of attorney shall not be affected by disability of the principal" or similar words showing that intent. Revised Code of Washington § 11.125.040
- A durable power of attorney can take effect when signed, or it can be written to take effect only if the principal becomes disabled or incapacitated (often called a "springing" power of attorney). North Dakota's court form lets the principal choose one of these two options. North Dakota Legal Self Help Center, Instructions for General Durable Power of Attorney
- Example (Virginia): a power of attorney is effective when signed unless it says it starts at a future date or event. If it starts on incapacity and no one was named to decide that, incapacity can be determined in writing by the attending physician and a second physician or licensed clinical psychologist, or by a lawyer, judge, or appropriate government official. Code of Virginia § 64.2-1607
- Example (Virginia): an agent who has accepted the role must, regardless of what the document says, act in good faith, act only within the authority granted, and follow the principal's reasonable expectations known to the agent or otherwise act in the principal's best interest. Code of Virginia § 64.2-1612
- Example (Virginia): unless the document says otherwise, an agent must also act loyally, avoid conflicts of interest, act with care and diligence, keep a record of all receipts, payments, and transactions, cooperate with the principal's health care decision-maker, and try to preserve the principal's known estate plan. Code of Virginia § 64.2-1612
- Example (Virginia): a power of attorney ends when the principal dies, revokes it, or its purpose is accomplished, among other events; unless the document says otherwise, a spouse-agent's authority ends when a divorce, annulment, or legal separation action is filed. Code of Virginia § 64.2-1608
- A durable power of attorney covers financial or other decisions, not health care decisions; North Dakota uses a separate document, called a Health Care Directive, for health care. North Dakota Legal Self Help Center, Instructions for General Durable Power of Attorney
FAQ
Does a durable power of attorney still work after the principal dies?
No. North Dakota's court instructions say a durable power of attorney ends on the death of the principal.
Is a durable power of attorney the same as a guardianship?
No. North Dakota's court instructions say a durable power of attorney is not a court order and does not require a court process to create, while guardianships and conservatorships are court processes in which a judge decides what decisions the guardian or conservator can make.
Can the principal cancel a durable power of attorney?
In North Dakota, the principal may revoke it at any time while legally competent, and the revocation must be in writing. Rules in other states may differ.
Does signing a new power of attorney cancel an old one?
Not automatically in Virginia. A new power of attorney revokes an earlier one only if the new one says that the earlier one, or all other powers of attorney, are revoked.
If a court appoints a conservator or guardian, does the power of attorney end?
Not automatically in Virginia. The agent becomes accountable to the court-appointed fiduciary as well as the principal, and the agent's authority continues unless the court limits, suspends, or ends it.
Can an agent be paid?
In Virginia, unless the power of attorney says otherwise, an agent is entitled to reimbursement of reasonable expenses and to compensation that is reasonable under the circumstances.
Does a durable power of attorney have to be notarized?
It depends on the state. North Dakota's court form must be signed in front of a notary public or clerk of court. In Virginia, a signature acknowledged before a notary is presumed to be genuine.
Related
- Do I Need a Lawyer to Make a Will?
- How Much Does a Probate Lawyer Cost?
- How to Make a Will
- What Is a Living Trust?
- What Is a Medical Power of Attorney?
- What Is a Power of Attorney?
- What Is a Quitclaim Deed?
- What Is an Executor?
- What Is Probate?
- Will vs. Trust: What's the Difference?
- Wills, Estates & Deeds by state
General legal information, not legal advice. Laws change and local rules can differ; check the linked official source or talk to a lawyer about your situation.