What Is a Durable Power of Attorney (POA)?
The main difference between durable POAs and regular POAs is that durable POAs stay in effect after incapacitation.
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What is a durable power of attorney?
A durable power of attorney (POA) permits someone to make financial or health care decisions on your behalf. Unlike a standard power of attorney, a durable POA allows someone to act on your behalf even if you become medically incapacitated.
Durable POAs can be an important part of estate planning, especially if you are likely to face incapacity or cognitive decline. In a health care setting, providers might turn to your next-of-kin — from a spouse to a distant cousin — for decisions about what you may want.
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Pros and cons of a durable power of attorney
Advantages | Drawbacks |
|---|---|
Permanent status through incapacity. Unlike a standard power of attorney, which ends once you’re incapacitated, a durable POA stays functional when you become incapacitated. | Difficult to override or revoke. You can revoke your own durable POA if you’re of sound mind, but it can be hard to override someone else’s durable POA without going to court. |
Clear designation of powers. Especially after an injury or health care crisis, loved ones may disagree about the best course of action for your health or finances. Naming an agent in your durable POA in advance can prevent this conflict. | You’ll typically need separate documents for medical and financial durable POAs. These are different categories of directives, and even though you can name the same person for both, you’ll need to craft and file the documents separately. |
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Types of durable power of attorney
Financial. The designated agent can manage all your financial affairs while you’re incapacitated, including paying your bills and taxes and paying professionals to assist with your assets.
Medical. Your agent, also called a health care proxy or surrogate, can execute your wishes for medical treatments or procedures and work with your health care providers to advocate for your needs. You can give your agent guidelines for your preferences by creating a living will.
» Learn more about health care proxies and how to choose one
Durable POA vs. living will
The main difference between a durable POA and a living will is that a durable power of attorney (also called a health care proxy) specifies who can make medical decisions on your behalf in case of incapacity, while a living will explains what medical treatments you want if you’re incapacitated, including your preferences for resuscitation, comfort care and organ donation.
Ideally, the agent you give power of attorney to uses your living will as a guide to make health care decisions that align with your wishes. People often combine medical durable POAs and living wills to create a single advance directive.
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How to set up a durable power of attorney
There are several ways to set up a durable power of attorney. Here are a few options:
Download a state-specific template, which is often included with online estate planning and will software packages.
Consult an estate planning attorney who can draft the document for you and tailor it to your unique situation.
After you have your document ready, follow these steps:
Name a backup or successor agent in case your agent becomes sick or incapacitated.
Have your document signed by witnesses or notarized, depending on state laws.
File your durable POA document with your other estate planning directives, and give a copy to your health care provider.
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