Why Are Powers of Attorney Called “Durable”?
Why are powers of attorney called “durable” and what’s the difference between a “durable” and a “non-durable” power of attorney?
A “durable” power of attorney is one that continues after the person who creates it becomes incapacitated. One that is not durable ceases to be in force upon the principal’s – the person creating the power of attorney – incapacity, which of course seems a bit perverse, given its purpose to have someone in place to act for you when you can’t do so for yourself.
Formerly, under the so-called “common law”—the traditional law created by centuries of court decisions—powers of attorney ended upon the incapacity of the principal, the legal theory being that the attorney-in-fact steps into the shoes of the principal to act in her place, so if the principal is legally incompetent, so is the attorney in fact. Every state has now adopted laws permitting the creation of “durable” powers of attorney that survive the incapacity of the principal and today almost all powers of attorney are “durable.” To be “durable,” a power of attorney must contain wording directing that it continue after the principal becomes incapacitated.
By contrast, all powers of attorney, whether or not they are durable, cease to be in effect upon the principal’s death.