If you’ve had your powers of attorney drafted recently, you might see the word “durable” in the title or text of the document. If you do, that’s probably a good thing. Let’s talk about what it means and why you want it in your documents.
What does “durable” mean in a power of attorney?
Durable powers of attorney are not effected by, or becomes effective upon, the disability or incapacity of the principal. On the other hand, non-durable powers of attorney become ineffective when the principal becomes disabled. A durable power of attorney gives your agent the power to act on your behalf even if you become incapacitated. A durable financial power of attorney could allow an agent to write checks on the principal’s behalf, sign documents for them, or manage the principal’s real estate, all while the principal is incapacitated. An agent may have authority to to make medical treatment decisions or gain access to the principal’s medical information all while the principal is incapacitated under a durable healthcare power of attorney
Why do I want a durable power of attorney?
You may not like the idea of an agent acting on your behalf when you are disabled or incapacitated. You may think it sounds like an opportunity for an agent to abuse their power. And, it is, so you should choose your agent very, very carefully. But, on the other hand, an agent is most helpful when you are disabled or incapacitated. Imagine, you have dementia and are unable to remember to pay your bills. You likely would want an agent to act on your behalf and pay those bills for you. Or, imagine that you are having a healthcare emergency, and unable to make your own decisions. That is a perfect time for your agent to step in and relay to the doctor what treatment you would want.
Plus, once you have lost capacity, you are no longer able to execute a power of attorney. And, the alternative to durable powers of attorney can be concerning. If you do not have a durable power of attorney and become incapacitated or disabled, the court may appoint a guardian or conservator. This means that the court may decide who is able to make decisions for you while you are most vulnerable. A durable power of attorney gives you the ability to choose who is acting on your behalf when you really need someone to.
Types of durable powers of attorney
There are two different types of powers of attorney: surviving and springing. Surviving durable powers of attorney, are powers of attorney that are effective immediately once you sign them. Your agent will be able to act, even before you are incapacitated. Then, because the powers of attorney are “durable” they remain effective even when you become disabled. The powers of attorney “survive,” so to speak, even though you become incapacitated.
Springing durable powers of attorney are only effective once your agent proves you are disabled or incapacitated. Under this type of power of attorney, your agent cannot act on your behalf until they can prove (often with a letter from a physician) that you are incapacitated or disabled. It can be a pain for an agent to get the necessary sign-offs to prove incapacity, but springing powers of attorney can also provide some assurance that an agent won’t act until they are really needed.
Does the durable power of attorney last forever?
Just because a power of attorney is durable, does not mean it lasts forever. First, the principal has the power to revoke a power of attorney so long as they are competent. Life changes. The person you want making decisions for you now, might not be the person you want making decisions for you in a few years. So long as you still have capacity, you can revoke your durable power of attorney. Then, you can execute a new power of attorney naming a new agent. With that being said, you should always choose an agent you trust completely.
Also, an agent only has authority to act under a power of attorney during the principal’s lifetime. Once you die, it is up to your personal representative (often called an “executor”) or your trustee to make decisions about your assets.
