Updated June 2022
Most people have at least heard of a power of attorney, or POA. As the name implies, a POA is a legal document that gives another person the power to act as your attorney – even if they are not one – managing legal and financial affairs in your name.
Differences Between General and Durable Power of Attorney
A power of attorney gives another person the authority to act on your behalf when you are unable to do so on your own. Suppose you are out of town on business quite often; POA could allow another person to handle your finances during those times you are gone. This power can be limited to a specific transaction or can cover many different circumstances.
A general power of attorney gives your agent authority to conduct any type of business on your behalf, including filing your tax returns, managing your bank accounts, buying, selling, or managing real estate or other property, entering contracts, and settling claims. You can grant your agent additional powers such as maintaining and operating business interests or making transfers to living trusts. Overall, general powers of attorney cover a wide range of transactions.
A general power of attorney ends when you become mentally incapable, due to sickness or injury, and are unable to handle your own affairs, while a durable power of attorney does not end under those circumstances.
This means that if you want a trusted individual to have access to your medical information and who can make important financial decisions for you in the event you are facing a serious illness—or when something unexpected happens—you want a durable POA rather than a general POA.
Differences Between Durable vs. Contingent Power of Attorney
A durable POA is valid from the day it’s executed. For instance, if you wanted to ensure someone could manage your finances or assets while you were out of town, a durable POA would grant them this power. A durable POA is one that continues to be in effect even during an individual’s incapacity or incompetence. The alternative to a durable POA is a contingent POA (also called a springing power of attorney), which only vests power under certain circumstances.
With a contingent POA you can choose when it will come into effect. For example, you could have it come into effect only when you can no longer make your own decisions. You can give someone the authority to decide whether you are still able to make your own decisions.
These documents grant certain powers to others in the event you are deemed incapacitated or unable to make important decisions. However, if you later regain that capacity, the powers granted might cease at that time. In other words, a contingent POA kicks in when a specific event occurs, while a durable POA covers what is designated from the day it is executed.
A few aspects to consider about your power of attorney:
When you give power of attorney to another person, you become the principal.
The person you give the power of attorney to is known as an attorney-in-fact or agent. An attorney-in-fact is looked upon as a “fiduciary” under the law, meaning it is one based on trust.
As the principal, you do not give up any rights to continue taking care of your own affairs just because you have a power of attorney.
Your attorney-in-fact is only legally allowed to use the power of attorney for your benefit.
You can revoke a power of attorney at any time, by simply giving written notice to the named attorney-in-fact. If the original power of attorney is recorded, then the revocation must also be recorded.
A durable power of attorney remains in effect until you revoke it or until your death.
Your attorney-in-fact is not responsible (financially) for your debts.
Note that POAs are governed by state laws, so the details can vary from state to state.
Choosing Someone You Trust
As you can see, creating a specific power of attorney involves many important responsibilities that will affect your well-being, and the livelihood of your family and loved ones. Therefore, it is essential that you choose someone who you trust to follow your wishes as closely as possible. It is also wise to go over these documents with your agent early and often to ensure that he or she fully understands your instructions and desires.
It is also important to get legal advice and guidance from an estate planning law firm before signing or creating a power of attorney form. An attorney can help you to decide which of the different types of powers of attorney is best suited to your particular needs and circumstances.