Legal Definitions - durable power of attorney

Durable Power of Attorney

A Durable Power of Attorney is a legal document that allows an individual (known as the principal) to appoint another person (called the agent or attorney-in-fact) to make financial, medical, or other personal decisions on their behalf. What makes this type of power of attorney "durable" is a specific clause within the document stating that it remains legally valid and effective even if the principal later becomes incapacitated or unable to make decisions for themselves due to illness, injury, or cognitive decline.

Without this explicit durability clause, a standard power of attorney would automatically become invalid upon the principal's incapacitation, potentially leaving their affairs unmanaged. A Durable Power of Attorney typically remains in effect until the principal's death or until they formally revoke it while they still have the capacity to do so.

Examples:

• Example 1: Planning for Future Health Challenges

  Sarah, a 75-year-old woman, is in good health but wants to prepare for the possibility of developing dementia or another debilitating condition in the future. She executes a Durable Power of Attorney, naming her daughter, Emily, as her agent. The document explicitly states that Emily can manage Sarah's finances, pay her bills, and make healthcare decisions even if Sarah later loses the ability to understand and make those decisions herself.

  This illustrates a Durable Power of Attorney because it ensures Emily can continue to act on Sarah's behalf even if Sarah becomes incapacitated. If it were not durable, Emily's authority would end precisely when Sarah needed her help the most.

• Example 2: Unexpected Accident or Illness

  Mark, a 40-year-old small business owner, is planning a long international trip. He wants to ensure his business operations and personal finances can be managed if he were to suffer an unexpected accident or severe illness while abroad or upon his return. He creates a Durable Power of Attorney, appointing his trusted business partner, David, to handle his business accounts, sign contracts, and manage his personal banking if he becomes unable to do so.

  This demonstrates a Durable Power of Attorney's function by providing continuous authority. Should Mark become incapacitated due to an unforeseen event, David's ability to manage Mark's affairs would not be interrupted, protecting both Mark's personal interests and his business.