What Is a Durable Power of Attorney?

A power of attorney that enables a trusted person to handle your affairs if you become mentally incapable requires a durable power of attorney. The core power of attorney gives someone the authority to act on your behalf and has three variations: General Power of Attorney, Limited Power of Attorney, and Medical Power of Attorney. The word “durable” attached to any of them means that the assigned power of attorney continues to be effective even if you become mentally incompetent.

What Is a Power of Attorney?

A power of attorney is a legal document that gives someone the authority to act on your behalf. The person who gives the authority is called the principal, and the person who is given authority is called the agent or the attorney-in-fact.

What Makes a Power of Attorney “Durable”?

Traditionally, a power of attorney would be canceled in four situations: (1) if you specifically cancel (revoke) it, (2) if it has an expiration date, (3) if you die, or (4) if you become mentally incompetent. In more recent times, the durable power of attorney was created to allow it to continue to be in effect after mental incompetency. The word “durable” means that the power of attorney continues to be effective after the principal becomes mentally incompetent.

Being mentally incompetent means that the person lacks the mental ability to make informed decisions, or is incapable of communicating those decisions. In addition to mental illness, this can also be due to disease, or an injury (such as one resulting in temporary unconsciousness or a coma). It may also be referred to as being mentally disabled or incapacitated.

Creating a Durable Power of Attorney

By its very nature, a health care power of attorney is always a durable power of attorney. To make any other power of attorney durable, certain language must be included in the document. This language is typically part of the state law that authorizes durable powers of attorney.

Many states have an officially recognized power of attorney form, often for both financial and medical powers of attorney. These forms will include the language that is needed to make the power of attorney durable. It is important to be sure that any form you use complies with the requirements of the law in your state.

When Does a Durable Power of Attorney Become Effective?

In most states, a durable power of attorney can either become effective as soon as it is properly signed, or it can become effective only if the principal becomes mentally incapacitated.

To become effective immediately, the document will include language such as: “This power of attorney shall not be affected by my subsequent disability, incapacity, or incompetence.”

To make it only effective in the event of mental incapacity, it will include language such as: “This power of attorney shall become effective upon the date of my disability, incapacity, or incompetence.” In this situation, you would not only be creating a durable power of attorney but also a springing power of attorney (because it “springs” into effect upon a future event).