What is a Durable Power of Attorney?

by | Mar 7, 2022 | Estate Planning

A Power of Attorney is a legal power or right, designated in a document that is created by a person who wants another person to take over some of his or her legal decision-making. The words “Power of Attorney” refer to both the legal power and the document that creates that power. The person who gives the power is the “Principal”, and the person who receives that power and who can exercise that power on the Principal’s behalf is called the “Attorney-in-Fact”.

The legal power granted by the Power of Attorney can be the power to sign documents on the Principal’s behalf, the power to make medical decisions for the Principal when that person is incapacitated, or any number of other things. One does not need to be a licensed attorney to be an Attorney-In-Fact. The Attorney-In-Fact must act in the best interests of the Principal at all times when exercising the power that has been given by the Principal, but does not need to have any special qualifications or skills.

Regular Powers of Attorney terminate once the Principal becomes no longer able to revoke that power of attorney due to incapacity or death. Therefore, the Power of Attorney document’s continued validity is dependent on the idea that the Principal can take his or her legal power back at any time. However, there might be times when a Principal does not want a mental or physical incapacity to suddenly end the Power of Attorney that has been granted to an Attorney-In-Fact. In this case, the Principal must have in place a document and a legal power that continues regardless of the Principal’s mental or physical health. The document and the power are both referred to the same way, as a Durable Power of Attorney.

A Durable Power of Attorney works much the same way as a regular Power of Attorney, except that it is not invalidated or terminated upon the death or incapacity of the Principal. A Durable Power of Attorney must be signed when the Principal is legally and mentally “competent”, which means the Principal must be not a minor age-wise, and he or she must be healthy of mind. People who are suffering from dementia or Alzheimer’s aren’t necessarily incompetent, if they experience periods of lucidity and sign such a document during one of those periods. The power of attorney remains valid even if they forget later that they signed it.

An Attorney-In-Fact for a Durable Power of Attorney must be a legal adult at the time of signing the document, i.e., not considered a minor in the state where the Durable Power of Attorney is signed. He or she must be willing and able to conduct his or her duties as an Attorney-In-Fact and should be chosen based on his or her trustworthiness and reliability, since he or she is going to be managing part of a person’s estate or things that affect a Principal’s wellbeing. An Attorney-In-Fact has a fiduciary duty to act in the best interests of the Principal when exercising this power. Failure to exercise the fiduciary duty in a reasonable manner could result in civil and criminal penalties against the Attorney-In-Fact.

There are several things an Attorney-In-Fact cannot do, even if the power to do so is stated in a Durable Power of Attorney. These things include:

  • Creating or revoking a will or codicil to a will.
  • Signing a document asserting that the Principal has knowledge of particular facts, such as a re-telling a witness account.
  • Acting as a guardian to another person over whom the Principal was acting as guardian. 
  • Voting for the Principal in a public election.
  • Performing highly personal services such as authoring a novel or creating a painting.

Durable Powers of Attorney are another valuable tool in the Estate Planning Attorney’s toolbox. To learn about how a Durable Power of Attorney might be a good addition to your estate plan, please complete our INTAKE FORM and we will get back to you within 24 hours, Monday-Friday.