What is The Difference Between a Power of Attorney And a Durable Power of Attorney?
In many legal matters, it becomes necessary to grant someone the authority to act on our behalf. Two common legal documents used for this purpose are a power of attorney (POA) and a durable power of attorney (DPOA).
While both grant decision-making power to another person, there are subtle yet crucial differences between these two legal instruments.
Understanding these differences is essential for anyone seeking to appoint an agent and ensure their wishes are properly carried out.
In this article, we will explore and explain the differences between power of attorney and durable power of attorney, helping you make informed decisions about your future planning and proxy representation.
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| What is the difference between a power of attorney and a durable power of attorney? |
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Definition of Power of Attorney and Durable Power of Attorney
Power of Attorney
Power of Attorney is a legal document that allows an individual (known as the principal or grantor) to grant someone else (known as the agent or attorney-in-fact) the authority to act on their behalf in legal or financial matters. The agent has the power to make decisions and take actions that the principal would normally be able to do, such as signing documents, managing finances, or making healthcare decisions. Power of Attorney can be granted for a specific period or can be revoked by the principal at any time.
Durable Power of Attorney
Durable Power of Attorney is a specific type of Power of Attorney that remains in effect even if the principal becomes incapacitated or unable to make decisions for themselves. In other words, it "endures" or continues to be valid when the principal can no longer make decisions. This is important in situations where the principal becomes mentally or physically disabled and needs someone to act on their behalf. Durable Power of Attorney is often used in estate planning to ensure that someone trusted can handle financial or healthcare matters if the principal becomes unable to do so themselves.
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Key Differences between Power of Attorney and Durable Power of Attorney
Continuity:
- Power of Attorney: It usually becomes ineffective if the person granting the power becomes mentally incapacitated or unable to make decisions.
- Durable Power of Attorney: It remains effective even if the person granting the power becomes mentally incapacitated or unable to make decisions.
Purpose:
- Power of Attorney: It is often used to handle specific legal or financial matters, such as signing documents, managing real estate, or making financial transactions on behalf of the person granting the power.
- Durable Power of Attorney: It is used to grant broad authority to another person to make decisions on behalf of the person granting the power, in case they become unable to make decisions due to mental or physical incapacity.
Effectiveness:
- Power of Attorney: It is generally effective immediately upon signing and delivering the document to the appointed person.
- Durable Power of Attorney: It can be effective both immediately and also spring into effect only upon the occurrence of a specified event, like the person becoming incapacitated.
Revocability:
- Power of Attorney: It can usually be revoked or canceled by the person granting the power at any time, as long as they still have the mental capacity to do so.
- Durable Power of Attorney: It can also be revoked or canceled by the person granting the power at any time, as long as they still have the mental capacity to do so. It can also specify an expiration date or condition upon which it automatically terminates. However, if the person granting the power becomes mentally incapacitated, they may not have the legal capacity to revoke the Durable Power of Attorney.
Authority:
- Power of Attorney: The authority granted under a Power of Attorney is typically limited to specific acts or decisions authorized by the person granting the power.
- Durable Power of Attorney: The authority granted under a Durable Power of Attorney can be broader, allowing the person appointed as the attorney-in-fact to make more extensive decisions and act on behalf of the person granting the power in various matters.
Conclusion
It is important to understand the difference between a power of attorney and a durable power of attorney when it comes to making decisions about legal representation and assistance.
While both documents grant someone the authority to act on behalf of another person, a power of attorney becomes invalid if the person granting it becomes incapacitated.
On the other hand, a durable power of attorney remains in effect even if the person becomes incapacitated, ensuring that their interests are protected and decisions can still be made in their best interest.
Therefore, it is important to carefully consider the circumstances and choose the most appropriate form of legal authority to ensure the smooth execution of wishes and effective management of affairs.
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Frequently Asked Questions
Is general power of attorney still valid?
Yes, a general power of attorney is still valid unless it is explicitly revoked or expires according to the terms stated in the document.
What is the most powerful power of attorney?
Durable power of attorney.
Does a durable power of attorney end at death?
Yes, a durable power of attorney ends at the death of the individual who granted it.
What rights does a durable power of attorney have?
A durable power of attorney grants the appointed person the legal authority to make financial and legal decisions on behalf of the person creating the power of attorney.
What does a durable power of attorney allow you to do?
A durable power of attorney allows a person to appoint someone to make decisions on their behalf in the event they become incapacitated.
Does durable power of attorney cover medical decisions?
Yes, it can cover medical decisions.
When does a durable power of attorney become effective?
It becomes effective as soon as it is signed and notarized, unless otherwise specified in the document.
