What Most People Don't Know About Durable Powers of Attorney

RE-SET YOUR PASSWORD

First Name *

Last Name *

Email *

Firm Name *

Phone *

Why do you want to enter the free trial?

Takeaways

A durable power of attorney is a legal document that allows a trusted individual to make financial or health care decisions on your behalf even if you become unable to handle your own affairs.
This document provides long-term safeguards, ensuring your affairs are managed without court intervention.

Though you are likely in good health now and can handle your own financial transactions and health care decisions, there is always a chance you could lose that ability. It could happen suddenly, as with a car accident, or gradually, as with dementia. Planning for the possibility of incapacity is an important part of estate planning.

In creating an estate plan, your attorney will ask you to nominate people you trust to make financial and health care decisions on your behalf if you ever become unable to do so. Your completed estate planning packet will likely include two different documents addressing these decisions: one document will be for legal and financial matters and the other for medical treatment decisions. These documents are both power of attorney documents.

A power of attorney (POA) is a legal document that allows an individual (known as the principal) to give another person (their agent or attorney-in-fact) the authority to act on their behalf. Though many people are familiar with the general concept of POAs, not everyone understands the different types of powers of attorney and how they work, especially with regard to durable powers of attorney.

What Is a Durable Power of Attorney?

A durable power of attorney (DPOA) is a POA that remains valid even if the principal becomes incapacitated (unable to make or communicate decisions for themselves). The word “durable” refers to its endurance through someone’s loss of capacity. Without this durability, the authority your agent has would end if you became unable to make your own decisions.

Durable POAs are commonly used in estate planning, health care planning, and financial management. They give family members and trusted individuals the legal authority to step in when needed without having to go through lengthy court proceedings. Because the agent may have broad powers, choosing the right person is crucial. Abuse of POA authority does happen, so it’s best to select someone trustworthy and, if possible, have checks and balances in place.

When creating an estate plan, some people will choose different trusted individuals for their durable general (financial and legal) POA and their durable health care (medical) POA. Making this distinction can help spread the responsibilities among different trusted people. This strategy also considers that some agents would be better at handling financial decisions and others better with medical decisions.

Power of Attorney vs. Durable Power of Attorney

The key difference between a power of attorney and a durable power of attorney is whether the authority survives the principal’s incapacity.

Power of Attorney

If a POA doesn’t explicitly state that it is durable, then in most states it is assumed to be nondurable by default. A nondurable POA is typically used for specific, limited transactions. For example, if someone is traveling abroad, they might grant a POA to a trusted person to sign real estate paperwork while they are away. Once the task is complete, or if the principal becomes incapacitated, the document is no longer valid.

Durable Power of Attorney

A durable POA is longer lasting and usually broader in scope. It remains valid even if the principal experiences a serious injury or illness or cognitive decline. Executing a DPOA can prove particularly important in situations involving aging, chronic illness, or unexpected medical events.

In short, POAs are temporary tools for convenience and durable POAs are safeguards for long-term planning.

Common Uses for Durable Powers of Attorney

A durable POA can cover a wide range of decisions, depending on how it is written. Some common uses include:

Decisions regarding financial affairs. Paying bills, managing investments, handling tax returns, and maintaining bank accounts.
Real estate transactions. Selling, buying, or managing property if the principal cannot handle the paperwork.
Health care decisions. When paired with a health care power of attorney, often a standalone document, the agent may make medical decisions if the principal is incapacitated.
Legal matters. Signing contracts or managing lawsuits on behalf of the principal.

Things Many People May Not Know About Durable Powers of Attorney

Despite their importance, durable POAs are often misunderstood. Here are some good things to know about them:

They can be as specific as you want. A durable POA doesn’t have to grant blanket authority. The role can be tailored to cover only certain actions, such as managing a single bank account or selling one piece of property.
They can become effective immediately or upon one’s incapacity. Some DPOAs are effective as soon as they’re signed. These are sometimes referred to as standing DPOAs. Others, known as springing durable POAs, only become effective if the principal becomes incapacitated.

Some DPOAs can even be both standing and springing – for example, if the principal wants their DPOA to be standing for their spouse but springing for any backup agents.
They end upon the principal’s death. A durable power of attorney does not replace a will. Once the principal passes away, the agent’s authority under the DPOA ends and the executor named in the principal’s will takes over.
Banks and institutions may have their own forms. Even if you have a valid POA, some banks or financial institutions require their own internal documents before allowing an agent to act. Plan ahead by contacting your financial institutions to understand their requirements.

Why Everyone Should Consider Having a Durable POA

No one likes to think about losing the ability to manage their own affairs, but the reality is that accidents, illness, or aging can leave anyone vulnerable. Without a durable POA in place, family members might have to go to court to be appointed as a guardian or conservator, a legal process that can be expensive, stressful, and time-consuming.

A durable power of attorney helps ensure that someone you trust is legally empowered to step in when needed, keeping your finances, medical care, and personal matters on track.

Additional Reading

For additional reading on topics related to powers of attorney, check out the following articles:

<h2><img alt="Closeup of man holding a pen to fill out a power of attorney form." src="https://cdn.elderlawanswers.com/common/uploads/photos/21240-Closeup of man filling out a power of attorney form AdobeStock_771659126 RESIZED.jpg" style="float:right; height:200px; margin-left:10px; margin-right:10px; width:356px" />Takeaways</h2> <ul> <li>A durable power of attorney is a legal document that allows a trusted individual to make financial or health care decisions on your behalf even if you become unable to handle your own affairs. </li> <li>This document provides long-term safeguards, ensuring your affairs are managed without court intervention.</li> </ul> Though you are likely in good health now and can handle your own financial transactions and health care decisions, there is always a chance you could lose that ability. It could happen suddenly, as with a car accident, or gradually, as with dementia. Planning for the possibility of incapacity is an important part of estate planning. In creating an estate plan, your attorney will ask you to nominate people you trust to make financial and health care decisions on your behalf if you ever become unable to do so. Your completed estate planning packet will likely include two different documents addressing these decisions: one document will be for legal and financial matters and the other for medical treatment decisions. These documents are both power of attorney documents. A power of attorney (POA) is a legal document that allows an individual (known as the principal) to give another person (their agent or attorney-in-fact) the authority to act on their behalf. Though many people are familiar with the general concept of POAs, not everyone understands the different types of powers of attorney and how they work, especially with regard to durable powers of attorney. <h2>What Is a Durable Power of Attorney?</h2> A durable power of attorney (DPOA) is a POA that remains valid even if the principal becomes incapacitated (unable to make or communicate decisions for themselves). The word “durable” refers to its endurance through someone’s loss of capacity. Without this durability, the authority your agent has would end if you became unable to make your own decisions. Durable POAs are commonly used in estate planning, health care planning, and financial management. They give family members and trusted individuals the legal authority to step in when needed without having to go through lengthy court proceedings. Because the agent may have broad powers, choosing the right person is crucial. Abuse of POA authority does happen, so it’s best to select someone trustworthy and, if possible, have checks and balances in place. When creating an estate plan, some people will choose different trusted individuals for their durable general (financial and legal) POA and their durable health care (medical) POA. Making this distinction can help spread the responsibilities among different trusted people. This strategy also considers that some agents would be better at handling financial decisions and others better with medical decisions. <h2>Power of Attorney vs. Durable Power of Attorney</h2> The key difference between a power of attorney and a durable power of attorney is whether the authority survives the principal’s incapacity. <h3>Power of Attorney </h3> If a POA doesn’t explicitly state that it is durable, then in most states it is assumed to be nondurable by default. A nondurable POA is typically used for specific, limited transactions. For example, if someone is traveling abroad, they might grant a POA to a trusted person to sign real estate paperwork while they are away. Once the task is complete, or if the principal becomes incapacitated, the document is no longer valid. <h3>Durable Power of Attorney</h3> A durable POA is longer lasting and usually broader in scope. It remains valid even if the principal experiences a serious injury or illness or cognitive decline. Executing a DPOA can prove particularly important in situations involving aging, chronic illness, or unexpected medical events. In short, POAs are temporary tools for convenience and durable POAs are safeguards for long-term planning. <h2>Common Uses for Durable Powers of Attorney</h2> A durable POA can cover a wide range of decisions, depending on how it is written. Some common uses include: <ul> <li>Decisions regarding financial affairs. Paying bills, managing investments, handling tax returns, and maintaining bank accounts.</li> <li>Real estate transactions. Selling, buying, or managing property if the principal cannot handle the paperwork.</li> <li>Health care decisions. When paired with a health care power of attorney, often a standalone document, the agent may make medical decisions if the principal is incapacitated.</li> <li>Legal matters. Signing contracts or managing lawsuits on behalf of the principal.</li> </ul> <h2>Things Many People May Not Know About Durable Powers of Attorney</h2> Despite their importance, durable POAs are often misunderstood. Here are some good things to know about them: <ul> <li>They can be as specific as you want. A durable POA doesn’t have to grant blanket authority. The role can be tailored to cover only certain actions, such as managing a single bank account or selling one piece of property.  </li> <li>They can become effective immediately or upon one’s incapacity. Some DPOAs are effective as soon as they’re signed. These are sometimes referred to as standing DPOAs. Others, known as springing durable POAs, only become effective if the principal becomes incapacitated. Some DPOAs can even be both standing and springing – for example, if the principal wants their DPOA to be standing for their spouse but springing for any backup agents.  </li> <li>They end upon the principal’s death. A durable power of attorney does not replace a will. Once the principal passes away, the agent’s authority under the DPOA ends and the executor named in the principal’s will takes over.  </li> <li>Banks and institutions may have their own forms. Even if you have a valid POA, some banks or financial institutions require their own internal documents before allowing an agent to act. Plan ahead by contacting your financial institutions to understand their requirements.</li> </ul> <h2>Why Everyone Should Consider Having a Durable POA</h2> No one likes to think about losing the ability to manage their own affairs, but the reality is that accidents, illness, or aging can leave anyone vulnerable. Without a durable POA in place, family members might have to go to court to be appointed as a guardian or conservator, a legal process that can be expensive, stressful, and time-consuming. A durable power of attorney helps ensure that someone you trust is legally empowered to step in when needed, keeping your finances, medical care, and personal matters on track. <h2>Additional Reading</h2> For additional reading on topics related to powers of attorney, check out the following articles: <ul> <li><a href="https://www.estateplanning.com/planning-for-incapacity" target="_self">Planning for Incapacity: Unmarried Partners</a></li> <li><a href="https://www.elderlawanswers.com/what-should-i-do-if-the-bank-wont-honor-my-power-of-attorney-12410" target="_self">What Should I Do If the Bank Won’t Honor My Power of Attorney?</a></li> <li><a href="https://www.elderlawanswers.com/revoking-a-power-of-attorney-7312" target="_self">How to Revoke a Power of Attorney: Estate Planning</a></li> <li><a href="https://www.elderlawanswers.com/execute-a-power-of-attorney-before-its-too-late-15757" target="_self">Execute a Durable Power of Attorney Before It</a><a href="https://www.elderlawanswers.com/what-should-i-do-if-the-bank-wont-honor-my-power-of-attorney-12410" target="_self">’</a><a href="https://www.elderlawanswers.com/execute-a-power-of-attorney-before-its-too-late-15757" target="_self">s Too Late</a></li> <li><a href="https://www.elderlawanswers.com/navigating-disputes-in-probate-court-20315" target="_self">Navigating Disputes in Probate Court</a></li> </ul>

Internet Listing Agreement

This Internet Listing Agreement (the "Agreement") is made by and between WealthCounsel, LLC, with offices located at 3 2nd Street, Ste. #501, Jersey City, New Jersey, USA, 07302, a Nevada limited liability company (the "Company") and the subscribing law firm (the "Firm"). The term "Firm" includes each individual attorney listed on the Firm's Web Page (as defined below) on the Company's Website (as defined below).

Listing

The Company agrees to insert Information (as defined below) about the Firm in the Company's Website located at http://www.elderlawanswers.com or www.specialneedsanswers.com or both (the "Website"), provided that the Company reserves the right not to list any and all Information that it deems, in its sole discretion, inappropriate, offensive or detrimental to the operation of the Company's business. Listing the Information on the Website neither includes submission of the Website or Web Page to Internet search engines nor guarantees that the Web Page will be included or ranked in a particular order in the search results of any or all Internet search engines.

"Information" in this Agreement means all information provided by or on behalf of the Firm to the Company in electronic format only.

"Web Page" in this Agreement means the Information, together with any accompanying graphic or design elements, as inserted in the Company's Website. The Company is not responsible for any errors or omissions in the Web Page. The Company is not responsible for any errors or omissions in the Template. It is the exclusive obligation of the Firm to ensure that the Web Page is free of errors and omissions.

Content License

The Company hereby grants to the Firm permission for the limited use of republishing, in print or electronic format, all articles or text ("the Content") authored by the Company specifically for the product(s) to which the Firm subscribes (for purposes of clarity, this refers to either ElderLawAnswers or Academy of Special Needs Planners), provided that (a) the Firm's subscription with the Company has not expired or been deactivated for non-payment, or breach of agreement as stated herein and (b) the Firm does not re-sell the Content or (c) use the Content for any other purpose than to promote the Firm; (d) the Firm does not use the Content to promote any ancillary business to the firm. The Company retains all copyrights and ownership of the Content entitled by law, implied or otherwise and reserves the right to terminate this Content License as stated herein, at any time.

Term

The Information will be listed for a period of one (1) year ("Term", which shall include each renewal term) beginning on the date of registration by the Firm. On each one (1) year anniversary of this date (each a "Renewal Date"), this Agreement will be automatically renewed for an additional twelve (12) months, unless either party gives thirty (30) days’ written notice to the other prior to the expiration of the then current Term stating that the notifying party wants to terminate this Agreement. Written notice may be by email to support@elderlawanswers.com.

Payment and Cancellation

The Firm agrees to give the Company permission to charge the Firm's credit card the annual subscription fee in equal installments over 12 consecutive months until the balance of the subscription fee is paid in full unless the Firm cancels subscription within 30 days of the initial date of registration by electronic or paper submission. The Firm understands that subsequent subscription renewal is automatic unless the Firm requests cancellation within the first 30 days after the renewal date (anniversary of subscription).

Representations and Warranties

The Firm represents and warrants that:

1. The Firm listed on the Web Page (a) has at least three (3) years of experience practicing elder law as a principal area of practice, or (b) can demonstrate an equivalent of experience in elder law by way of on-going education, training or other practical experience deemed acceptable to the Company;

2. The Firm is entitled to post the legal services described in the Information on the Web Page;

3. Each attorney listed on the Web Page is duly licensed and qualified to practice law in the state in which he or she is listed;

4. Each attorney listed on the Web Page is in good standing in all states in which such attorney is licensed and qualified to practice law;

5. Each attorney listed on the Web Page is covered by malpractice insurance for performing the legal services described on the Web Page under the name of such attorney, with limits of at least $100,000 per claim and $300,000 in the aggregate, issued by a nationally recognized and reputable insurance company;

6. The Information (a) does not infringe or violate the rights, including intellectual property rights and any right of privacy or publicity, of any third party, (b) is neither defamatory nor obscene, and (c) is true and correct in all respects;

7. This Agreement is a legal and valid obligation binding on the Firm and enforceable on its terms, the execution, delivery and performance of which does not conflict with any other agreement, instrument or understanding, oral or written, to which the Firm is a party or by which it is bound, nor violate any law, rule or regulation applicable to the Firm; and

8. The person executing this Agreement on behalf of the Firm is a partner or owner of the Firm, duly authorized to execute this Agreement on behalf of the Firm.

Subscribers of the Academy of Special Needs Planners (ASNP) who are not law firms further warrant:

1. That each financial planner listed on the Web Page is a qualified as a CFP, CLU, ChFC or Chartered Special Needs Consultant; and

2. That every trust administrator listed on the Web Page has been recommended by an ASNP subscriber who is not also a member of that trust administrator’s company.

Covenants

The Firm undertakes covenants and agrees to take each of the following actions, and if the Firm is not an individual, to ensure that each attorney listed on the Web Page takes such action:

1. to comply with all laws, rules and regulations applicable to it, him or her in each state and jurisdiction in which he or she is licensed and qualified to practice law;

2. to use the Website and the Web Page in compliance with U.S. law and any other applicable laws, rules and regulations;

3. not to use the Website or the Web Page for any illegal purposes;

4. not to interfere with the Website, the Company's other subscribers and their web pages on the Website, and any other services the Company may provide, directly or indirectly, to the public or its subscribers; and

5. to keep the Information current and updated on at least a monthly basis during the term of this Agreement, and to correct any errors and omissions therein within twenty-four (24) hours of becoming aware or being notified of them.

Terms and Conditions

In addition to any other rights and remedies at law or in equity, the Company reserves the right to terminate this Agreement and remove the Web Page without prior notice (a) if payment of the Listing Fee is Past Due; (b) if the Firm breaches any term or condition of this Agreement, provided, the Company shall use commercially reasonable efforts to notify the Firm of such removal and termination and in the case of a breach under clause (b), the Firm shall have fifteen (15) days from the date of such notice to cure the breach; and (c) if the Company determines based on feedback from consumers that the Firm or any of its listed attorneys does not meet the standard of practice desired of subscribers of the Website. "Past Due" means the annual Listing Fee (paid once a year or in 12 equal installments, once a month) is not received by the Company on or before the 30th day from which the payment is due. If a breach is cured to the satisfaction of the Company, in its sole discretion, the Company shall re list the Web Page and restore any suspended service in accordance with the terms of this Agreement. In case of a permanent removal of the Web Page and cancellation of this Agreement, the Company shall reimburse the Firm for any Listing Fees theretofore paid for the remainder of the current Term on a prorated basis. Other than as stated in the immediately preceding sentence, the Company does not give any refunds.

Provision of Services

The Company intends, but does not guarantee, that the Web Page will be operational 24 hours per day, 7 days per week, 365 days per year. The Website and Web Page may not be hosted on the Company's own servers, and the Company depends on a hosting service provider to keep the Website and Web Page operational. Notwithstanding anything to the contrary in this Agreement, the Company's obligation to keep the Website and Web Page operational is subject to the delivery and limited by the scope of hosting services provided to the Company by its hosting service. Interruptions in service demonstrably due to a failure of the Company's or its hosting service provider's web servers ("Interruptions") that last twenty-four (24) continuous hours or less will not be compensated. Interruptions that last more than twenty-four (24) continuous hours will result in an extension of the Term of this Agreement equal to the duration of the Interruption (the "Extension of Service") not to exceed 30 (thirty) days. AN EXTENSION OF SERVICE IS THE FIRM'S SOLE REMEDY FOR AN INTERRUPTION IN SERVICE, AT LAW AND IN EQUITY.

User Information

Any and all information provided by or collected from visitors of the Website and the Web Page (the "User Information") shall be owned solely by the Company, except that the User Information which is part of the text of an e-mail communication initiated on the Website or the Web Page, shall be treated as confidential and as protected by the attorney-client privilege between the user who initiated the e-mail and the Firm or attorney to whom it is addressed (the "Confidential Information"). User Information that would otherwise be deemed to be Confidential Information shall not qualify as Confidential Information if it is also provided to or collected by the Company in a manner other than as indicated above. The Company will neither collect, track nor store Confidential Information.

No Warranties

THE COMPANY DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES, AND HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND AS TO ANY ASPECT OF THE WEBSITE, THE WEB PAGE, THE INFORMATION THEREIN AND ANY SERVICES PROVIDED UNDER THIS AGREEMENT, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. THE COMPANY DOES NOT WARRANT THAT THE WEBSITE AND THE WEB PAGE WILL BE ONLINE UNINTERRUPTED, ERROR FREE OR COMPLETELY SECURE, AND WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS, ERRORS OR BREACHES IN SECURITY. IN ADDITION, THE COMPANY SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS AND WARRANTIES WITH RESPECT TO ANY SERVICES OR PRODUCTS OFFERED OR SOLD THROUGH THE WEBSITE.

Limitation Of Liability

IN NO EVENT WILL THE COMPANY BE LIABLE TO THE FIRM FOR LOSS OF PROFITS, LOSS OF REVENUES, LOSS OF SAVINGS, LOSS OF USE, LOSS OR CORRUPTION OF CONTENT, DATA OR INFORMATION OR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, WHETHER UNDER TORT, CONTRACT OR OTHER THEORIES OF RECOVERY. IN NO EVENT WILL THE COMPANY'S TOTAL LIABILITY ARISING OUT OF, CONNECTED WITH OR RESULTING FROM THIS AGREEMENT EXCEED THE AMOUNT PAID BY THE FIRM TO THE COMPANY UNDER THIS AGREEMENT FOR THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM OF LIABILITY.

Indemnification

Each party will indemnify, defend and hold the other party harmless from and against any and all costs, liabilities, losses, damages and expenses, including reasonable attorney's fees, and amounts paid in settlement, resulting from or arising out of any claim, suit, action or proceeding brought against the other party as a consequence of the indemnifying party's infringement of any intellectual property right of a third party, including without limitation, any third party patent, copyright, trademark or trade secret. This indemnification is subject to the parties' limitation of liability under this Agreement.

Governing Law

This Agreement shall be governed by and construed in accordance with the laws of the State of New Jersey and shall be deemed to have been executed in Jersey City, New Jersey. Any legal action arising from or related to this Agreement shall be brought in any state or federal court located in the State of New Jersey, County of Hudson, and the parties hereby consent to the jurisdiction of such courts.

Entire Agreement

This Agreement is the entire Agreement between the parties with respect to the subject matter hereof.

Arbitration

Any disputes that arise between the parties with respect to the performance of this Agreement shall be submitted to binding arbitration in the State of New Jersey, County of Hudson by the American Arbitration Association, to be determined and resolved by said Association under its rules and procedures in effect at the time of submission and the judgment upon the award be entered in any court having jurisdiction thereof. The parties hereby agree to share equally in the costs of said arbitration except that in the discretion of the arbitrator, any award may include the cost of the party's counsel if the arbitrator expressly determines that the party against whom the award is entered has caused the dispute, controversy or claim to be submitted to arbitration as a frivolous or dilatory action.

Severability

Should any term, warrant, covenant, condition, or provision of this Agreement be held to be invalid or unenforceable, the balance of this Agreement shall remain in full force and shall stand as if the unenforceable part did not exist.

Validity

This Agreement is valid and enforceable against the Firm. Payment by the Firm to the Company, by check or electronic transaction, constitutes the Firm's execution and delivery of this Agreement.

I have read and agree with the terms of the End User License Agreement (EULA).

What Most People Don't Know About Durable Powers of Attorney

LOGIN TO VIEW THIS ARTICLE

Latest Articles

Subscribe to the Knowledge Bank. Get new article and cases summaries