Durable Power of Attorney Form

A durable power of attorney (DPOA) is a document that lets you appoint someone you trust (your “agent” or “attorney-in-fact”) to make legal and financial decisions on your behalf, even if you’re unable to do so yourself.

What makes a durable POA unique is that it stays in effect if you become mentally or physically incapacitated, giving you peace of mind that your wishes will be honored. It remains valid until you pass away or choose to revoke it.

Durable Power of Attorney – By State

Table of Contents

• Durable Power of Attorney - By State
• Durable Power of Attorney - By Type
• What Is a Durable Power of Attorney (DPOA)?
• How to Get a Durable Power of Attorney
• Signing Requirements
• How to Write a Durable Power of Attorney
• Frequently Asked Questions

Durable Power of Attorney – By Type

What Is a Durable Power of Attorney (DPOA)?

A durable power of attorney (DPOA) lets you choose someone you trust to handle your finances, business, or legal matters if you can’t do it yourself. This document helps you plan for situations where a serious illness or other issue might stop you from making your own decisions.

A durable POA is different from other types of power of attorney because it stays in effect even if you can’t speak up for yourself. It ensures that your wishes are respected and that someone reliable is there to support you when you need it most.

Definition of “Durable”

The Uniform Power of Attorney Act (UPOAA) helps standardize power of attorney rules across the United States. In Section 102(2) [1] , the term “durable” is defined as follows:

“Durable,” with respect to a power of attorney, means not terminated by the principal’s incapacity.

One key element of the UPOAA is the default rule regarding durability. According to Section 104, a power of attorney is “durable unless it specifically states that it ends if the principal becomes incapacitated.” In other words, a power of attorney will usually remain in effect even if the principal is unable to make decisions.

Tax Implications

You can use a DPOA to appoint someone to act on your behalf for your tax affairs if you become unable to act. When you appoint an agent, you can rest assured that they’ll be able to file returns, manage payments, and resolve any IRS matters timely.

To authorize your agent to represent you before the IRS and take care of your taxes, you’ll need to fill out IRS Form 2848. This form includes important information such as your Social Security number, the name and mailing address of your representative(s), and a description of the matter(s) for which they are authorized to represent you.

Durable Power of Attorney vs. Non-Durable Power of Attorney

The key difference between a durable and a non-durable power of attorney is whether the document stays in effect if the principal is no longer able to make decisions. A durable POA remains in effect, but a non-durable POA does not.

To better understand, imagine Tim and John. Tim has a durable POA, while John has a non-durable POA. If both Tim and John develop a condition that prevents them from making decisions:

• Tim’s agent can keep making decisions for him, as the durable POA stays in effect.
• John’s agent loses the right to act because the non-durable POA ends when the principal can’t make decisions.

How to Get a Durable Power of Attorney

Follow these steps to obtain a durable power of attorney and secure the peace of mind it offers:

1. Designate Your Agent(s)

Pick someone you trust—like a family member, close friend, or lawyer—to be your agent. You can choose one agent or multiple agents to handle different parts of your affairs. If you choose more than one, make sure they can work well together to avoid confusion or delays.

It’s also a good idea to name a successor agent. This person will take over if your main agent is unable to act. This way, you’ll always have someone ready to manage your affairs without any interruptions.

2. Choose What You Authorize Your Agent to Do

Determine and list the areas where you want to give your agent authority. The rights your attorney-in-fact has under a durable power of attorney can vary, depending on your goals. You may allow them to:

• withdraw, deposit, and access funds from checking and savings accounts
• handle recurring and outstanding utility, mortgage, and insurance bills
• initiate, defend, or settle lawsuits or legal claims
• make gifts or transfer assets
• handle retirement benefits
• modify or update insurance policies
• sign business contracts
• buy or sell stocks, bonds, and other securities
• buy, sell, or manage real estate properties

You have the flexibility to provide your agent with broad or limited authority, as you can clearly define or restrict specific powers. This allows you to tailor the responsibilities to match your needs while giving you peace of mind that your preferences are respected.

3. Draft Your Durable Power of Attorney Form

Once you choose your agent(s) and determine what powers to grant them, you can draft your DPOA. If you plan to use generic forms with prewritten clauses, ensure you agree with them before you sign your document.

Furthermore, consider when you want the document to become effective. The DPOA often becomes effective once the principal signs the document. Still, you can decide if you want the document to become effective later or upon your mental incapacitation. If it becomes effective upon your incapacitation, it will be a springing POA.

4. Check Signature and Notary Requirements in Your State

Ensure the form complies with your state’s to guarantee its legal validity and enforceability. Most states require a notary public to notarize the principal’s signature, and some need two witnesses to make it legally binding.

5. Keep a Copy of the Durable Power of Attorney

While you don’t need to file your durable power of attorney with a court or government office for it to be valid, it’s a great idea to keep it in a safe place with your other important estate planning documents.

Share a copy with your agent to ensure they’re prepared to act on your behalf when necessary. You may also give copies to trusted individuals or organizations like your bank or attorney’s office. These actions help ensure that the involved parties understand your wishes and know how to fulfill them.

6. Update the Document As Needed

If your circumstances or needs change, it’s important to update your DPOA to reflect those changes. This proactiveness can offer peace of mind, as you’ll know that a clear, up-to-date plan supports your future wishes.

Signing Requirements

Some states have special requirements for notarizing a document that grants durable power of attorney. It’s advisable to follow your state’s signing requirements, so your document is legally valid:

How to Write a Durable Power of Attorney

Provide clear and specific instructions to ensure your durable power of attorney serves you effectively and gives your agent the proper authority to handle your affairs with confidence and ease.

This is generally the structure of a durable power of attorney; however, the structure and necessary provisions vary from state to state. 

1. Designation of Agent

Indicate who you would like to designate as your attorney-in-fact. Enter their full legal name and physical address, as well as the name and address of any co-agents. Although the form only allows space for two designated agents, you can add others in the Special Instructions section.

An agent should be a trusted individual capable of handling your financial matters responsibly. Individuals you may choose to designate as an agent include a:

• reputable professional, such as an accountant or lawyer
• spouse
• close family member or relative
• close friend

Discuss the matter with your agent before beginning the POA process. They should be willing and able to handle tasks in accordance with your wishes. Consider whether they have the time and capacity to take on these financial matters in your absence.

You may appoint a successor agent who can intervene if your primary agent can’t fulfill their role. A secondary successor agent provides even greater security, offering you additional peace of mind that someone will handle your affairs as you intend, no matter what changes arise.

2. Grant of General Authority

Choose which powers you want your attorney-in-fact to have. A durable POA will continue beyond the point where you become incapacitated and typically has no end date unless you specify one. Some principals give their agents only strictly necessary authority. Others may grant full authority over all matters a durable POA covers.

Initial the line before the subjects you wish to include in your agent’s general authority under the durable power of attorney. If you want your agent to handle all the above financial matters, initial line N for “All Preceding Subjects.”

3. Grant of Specific Authority (Optional)

When you grant general authority to your agent, some activities are automatically excluded from their powers unless you specifically choose to include them. These exclusions protect your interests and ensure your elections are purposeful. Intentionally granting powers to your agent lets you give your agent flexibility to act in your best interests and preserve the integrity of your wishes.

To tailor the power of attorney to your needs, initial next to the specific authorities you want to grant. If you’re unsure whether a certain power is necessary, consult an estate or probate attorney to feel more confident about your choices.

4. Special Instructions (Optional)

Under the special instructions section, list any additional information pertinent to your durable power of attorney. This is where you can include the names of additional attorneys-in-fact or successors. You can also use this section to detail further limitations or instructions for an agent to handle your affairs.

5. Effective Date

You have three options when establishing the effective date for a durable power of attorney:

• The durable POA becomes effective immediately once all relevant parties sign and notarize the form consistent with state laws.
• The agent gains authority on a specific date, such as when the principal will begin their military employment or incarceration service.
• The agent gains authority when a specific event occurs, such as if the principal goes to live in an assisted living facility.

6. Termination

A durable power of attorney endures regardless of the principal’s disability or incapacity. Other types of POAs, called limited powers of attorney, may only be effective for as long as it takes to handle a particular matter.

A durable power of attorney, on the other hand, continues indefinitely until the principal revokes it or passes away. Upon the principal’s death, financial responsibilities become the responsibility of the estate’s legal executor.

7. Nomination of Guardian (Recommended)

If you become incapacitated, the court may choose a guardian to handle your personal affairs. Such affairs may include legal and financial decisions.

Unlike a power of attorney, guardianship offers more extensive control over various aspects of an individual’s life. A guardian makes most decisions on behalf of the principal, but they’re still subject to the court’s oversight and must act in the principal’s best interest. Guardianship is typically reserved for a severe mental disability that makes the principal incapable of making their own choices.

You can nominate a separate guardian for your estate and your person on your durable power of attorney form or appoint one person to serve in both capacities. However, the final decision to appoint the guardian(s) rests with the probate court.

8. Reliance On This Power of Attorney

Include a clause that formally addresses the scope and intent of the power of attorney. This section should indicate that anyone, including the agent, can rely on the validity of the POA form unless they know it is invalid.

9. Signature and Acknowledgment

A durable power of attorney requires a signature and acknowledgment from the principal. If you cannot physically sign the form, a representative can sign it on your behalf. When they sign on your behalf, they should enter the following details in the signature and acknowledgment section:

• name of the representative
• signature of the representative
• signing on behalf of
• printed name of the principal
• principal’s address
• principal’s telephone number

Your power of attorney form may require a notary or witnesses to be valid. Review your state’s signing requirements before you or your representative sign the form to ensure you follow appropriate legal protocols.

10. Notary Public

The notary may ask for a driver’s license or state ID to verify your identity. They may complete a notary acknowledgment at the bottom of the durable POA form or complete a separate state-approved form. The acknowledgment typically includes the following details:

• state or commonwealth name
• county name
• date of notary acknowledgment
• notary signature
• notary seal
• date the notary’s commission expires

Frequently Asked Questions