What's the Difference Between a Durable and a Regular Power of Attorney?

What's the Difference Between a Durable and a Regular Power of Attorney?

One of the most frequently used terms in estate planning is “power of attorney." Indeed, it is one of the most important documents you can have, and there are several types of powers of attorney, each with its own rules and provisions.

Not sure which one or ones you might want to put in place? Below is a quick explanation of the different types of powers of attorney to help you decide.

What is Power of Attorney?

A power of attorney is a legal document through which you, as the principal, name someone to have the authority to make decisions and take actions on your behalf. This person is called your agent or attorney-in-fact. Note that the person you name does not have to be an attorney.

A durable power of attorney, sometimes called a DPOA for short, means there is language within the legal document providing that this power extends to your agent even in the event you become incapacitated and unable to make decisions for yourself.

A durable power of attorney generally remains in effect until the principal revokes the powers or dies, but can also be terminated if a court finds the document invalid or revokes the agent's authority, or if the principal gets divorced and the spouse was the agent.

A regular power of attorney, on the other hand, ends if you become incapacitated, which may be one good reason for having a durable power of attorney in place, depending on your needs. You may not want to discover that a regular power of attorney has ended—just when those powers could be needed most.

Common Powers of a Power of Attorney

While it is up to you as the principal to decide exactly what powers your power of attorney should have, some of the most common powers include the following:

  • Paying bills, including signing checks
  • Buying, selling and managing real estate
  • Conducting business transactions
  • Borrowing money
  • Handling legal or insurance claims
  • Filing tax returns
  • Making donations or gifts
  • Making medical decisions

One important option to consider when drawing up a power of attorney is whether to make it general or limited. While a general power of attorney can include a combination of the powers described above—including financial, business, legal, and medical—a limited power of attorney does just what it sounds like: it limits the powers granted to the agent.

This may also be called a special power of attorney, and may even refer to one single process or event, such as the authority to sign a contract when the principal cannot because of illness.

A limited or special power of attorney may also be restricted to a specific time period.

Specific Types of Durable Powers of Attorney

There are two main types of durable powers of attorney:

  • Financial Power of Attorney: Also called a durable power of attorney for finances, this gives the person of your choice the authority to manage your financial affairs should you become incapacitated.
  • Medical Power of Attorney: Also called a durable power of attorney for health care, this gives the person of your choice the authority to make medical decisions for you should you be unable to do so.

Why all the different types of powers of attorney? You may find that you want one person to make medical decisions for you, such as your spouse, but that your business partner is in a better position to make business-related decisions.

How to Get Power of Attorney

Getting a power of attorney drawn up can be as easy as using an online process, but note that state laws vary regarding the establishment of a power of attorney. Because of this, you should always make sure your document is executed in accordance with your state's laws.

When deciding to create a power of attorney, be sure to think about all the aspects you may want an agent to handle and consider carefully the person—or people—you will name to be in charge of your affairs, especially in case of your incapacitation.

Also, be sure to revisit your power of attorney documents regularly, at least once a year, to make sure that they still reflect your wishes.

Having a power of attorney in place, especially a durable power of attorney, can offer you great peace of mind, knowing that your affairs will be handled by someone of your choice and not someone chosen by the court—which could end up costing time and money as well.

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