When creating a power of attorney, one of the most important decisions you will face is whether to make it durable or non-durable. This single distinction can determine whether your agent retains the authority to act on your behalf during the times you need help the most. Understanding the difference is essential to making the right choice for your situation.
What Makes a Power of Attorney "Durable"?
The word "durable" in the context of a power of attorney has a specific legal meaning. A durable power of attorney remains valid and effective even after the principal (the person who created the document) becomes mentally incapacitated. Incapacity can result from a stroke, dementia, a traumatic brain injury, a coma, or any other condition that renders a person unable to make their own decisions.
For a POA to be durable, it must contain specific language indicating that the principal's incapacity does not terminate the agent's authority. The exact wording varies by state, but most statutes require a statement along the lines of "this power of attorney shall not be affected by the subsequent disability or incapacity of the principal."
Without this durability language, a power of attorney is presumed to be non-durable in most states, meaning it automatically becomes invalid the moment the principal loses mental capacity.
What Is a Non-Durable Power of Attorney?
A non-durable power of attorney grants your agent authority to act on your behalf, but that authority automatically terminates if you become mentally incapacitated. It also terminates upon your death, if you revoke it, or when the specified task or time period is completed.
Non-durable POAs are typically used for short-term, specific purposes where incapacity planning is not a concern. They are practical tools for delegating authority for a defined transaction or period, after which the authority is no longer needed.
When to Use a Durable Power of Attorney
A durable power of attorney is the right choice in several common scenarios.
Long-term incapacity planning. If you want to ensure that someone can manage your financial or healthcare affairs in the event you become incapacitated, a durable POA is essential. This is the primary reason a durable POA is considered one of every adult's core legal documents.
Aging and eldercare. As people age, the risk of conditions like dementia, Alzheimer's disease, or stroke increases. A durable POA ensures that a trusted family member or friend can step in to manage finances, pay bills, and coordinate care without needing to go through the court system.
Chronic illness management. If you have a progressive illness that may eventually affect your cognitive abilities, a durable POA puts protections in place while you still have the legal capacity to create one.
General peace of mind. Even young, healthy adults can become incapacitated through accidents or sudden illness. A durable POA is a safety net that costs relatively little to create but can save your family significant time, money, and stress if the unexpected happens.
When to Use a Non-Durable Power of Attorney
A non-durable power of attorney is appropriate when incapacity is not a concern and you need someone to handle a specific, time-limited task.
Real estate transactions. If you are buying or selling property but cannot be present at the closing, a non-durable POA can authorize someone to sign the documents on your behalf.
Business transactions. You might grant a non-durable POA to a business partner or employee to execute a specific contract, negotiate a deal, or handle a regulatory filing while you are unavailable.
Travel. If you are going to be out of the country and need someone to handle a specific financial matter in your absence, a non-durable POA can provide the necessary authority for just that transaction.
Vehicle transactions. Some people use a non-durable POA to allow someone else to handle vehicle title transfers, registration, or sales on their behalf.
In each of these cases, the task is defined and temporary. Once it is completed, the authority ends, and there is no need for the POA to survive the principal's potential incapacity.
Key Differences at a Glance
The fundamental difference comes down to what happens when the principal can no longer make their own decisions. A durable POA continues in force and allows the agent to act during precisely the time when the principal needs the most help. A non-durable POA stops working at that critical moment.
With a durable POA, the agent can continue managing the principal's finances, paying bills, and handling obligations seamlessly. With a non-durable POA, the agent's authority vanishes, and the family is left scrambling to petition a court for guardianship or conservatorship powers, a process that can take weeks or months and cost thousands of dollars.
Another difference is the typical scope. Durable POAs tend to be broader in the powers they grant because they are designed for comprehensive, long-term management. Non-durable POAs tend to be narrower because they are usually created for a specific purpose.
Can a Durable POA Be Limited in Scope?
Yes. Durability and scope are independent features of a power of attorney. You can create a durable POA that only grants authority over specific matters, such as managing a particular bank account or handling real estate transactions. The durability simply means that whatever powers are granted will survive the principal's incapacity.
This flexibility allows you to tailor the document to your exact needs. If you want broad financial management authority that survives incapacity, you can have that. If you want narrow authority that survives incapacity, you can have that too.
Important Considerations
When deciding between a durable and non-durable POA, keep several factors in mind.
Choose your agent carefully. Because a durable POA gives your agent authority during your most vulnerable moments, selecting someone trustworthy, competent, and reliable is paramount. Consider their financial acumen, their availability, and their willingness to take on the responsibility.
Include safeguards. With a durable POA, you might want to include provisions requiring your agent to provide regular accountings to family members, or name a monitor who can review the agent's actions.
Review and update regularly. Life circumstances change. Your chosen agent may move away, become ill themselves, or your relationship may change. Review your POA every few years and update it as needed.
Understand your state's laws. Some states have specific requirements for durable POAs, including particular language that must be included, notarization requirements, and witness rules. Make sure your document complies with your state's laws.
Making Your Decision
For most people engaged in forward-looking planning, a durable power of attorney is the appropriate choice. It provides protection during the exact scenarios you are most likely trying to prepare for. A non-durable POA is useful for specific, short-term needs where incapacity is not a concern.
Many people choose to have both: a broad, durable POA as part of their estate plan, and occasional non-durable POAs for specific transactions as they arise. There is no rule that limits you to one type.
When you are ready to create your power of attorney, mypoa.ai makes the process simple by guiding you through the key decisions, including whether a durable or non-durable POA is right for your needs, and generating a document that complies with your state's requirements. Your download includes detailed instructions for proper signing, witnessing, and notarization based on your jurisdiction.