Key Takeaways:

• The person who creates a power of attorney is known as the principal.
• A durable power of attorney lasts beyond its principal’s incapacity, hence the term “durable.”
• When a principal dies, their power of attorney becomes ineffective.

Question:

Why are powers of attorney called “durable” and what’s the difference between a “durable” and a “non-durable” power of attorney?

Response:

A “durable” power of attorney is one that continues after the person who creates it, known as the principal, becomes incapacitated. One that is not durable ceases to be in force upon the principal’s incapacity, which of course seems a bit perverse, given its purpose is 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. This is when the principal’s will, if they have one, takes over.

 

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