Durable power of attorney

What it means

A power of attorney lets somebody act on your behalf. An ordinary one ends the moment you lose capacity. A durable one does not, and that is the difference the word carries.

It is signed while the person still has capacity. It cannot be created afterwards — at that point the only route is a court, which is slower, public and expensive.

It ends at death. From that moment the executor or administrator has authority and the agent has none, whatever the document says.

Why it matters

Almost every reason a family wants a power of attorney is a reason they need a durable one. A document without the durability language fails at exactly the moment it is needed.

It is also the single most effective thing a family can do before a crisis. The alternative is guardianship or conservatorship, and no family that has been through one recommends it.

When you are likely to meet it

• When helping a parent organize documents.
• When a bank refuses to speak to you about a parent's account.
• When a parent's memory has begun to change and nothing has been signed.

How this varies by state

Whether a state requires witnesses as well as a notary, whether it publishes a statutory form, and whether a bank may refuse one it did not draft are all set by state law.

Related terms

• AdemptionWhat happens when a will leaves a specific item that no longer exists at death: the gift usually simply fails.
• Attorney-in-factThe person a power of attorney gives authority to. Not a lawyer.
• CapacityWhether somebody is able to understand a decision and its consequences well enough to make it. It is decided decision by decision, not once and for all.
• Catalog of electronic communicationsThe list of who was written to and when — as distinct from what the messages said.
• ConservatorshipA court appointing somebody to manage the money and property of an adult who cannot manage it themselves.
• Content of an electronic communicationWhat the messages actually said — the half of a digital account that is hardest to reach, and impossible to arrange for after capacity is gone.
• Fiduciary dutyThe obligation to act for somebody else's benefit rather than your own — and to be able to show you did.
• Financial exploitationTaking or misusing an older or vulnerable person's money or property. It is usually done by somebody they know.
• GuardianshipA court appointing somebody to make decisions for an adult who cannot make them, usually about care, housing and medical treatment.
• Health care proxyA document naming somebody to make medical decisions for you if you cannot make them yourself.
• HIPAA authorizationWritten permission for a doctor, hospital or insurer to share somebody's medical information with a named person.
• Incapacitated principalThe person who signed a power of attorney, after they have lost capacity — and the statutes are explicit that no court has to have said so.
• NotarizationA notary public confirming who you are and witnessing your signature, so that a document can be relied on by somebody who was not there.
• Personal care agreementA written contract under which a family member is paid to provide care.
• Power of attorneyA document letting somebody act for you while you are alive — and which stops working the moment you die.
• Representative payeeSomebody appointed by Social Security to receive and manage benefits for a person who cannot manage them.
• Revised Uniform Fiduciary Access to Digital Assets ActThe law, adopted in most states, that gives an executor, trustee or agent a route to a person's digital accounts.
• Springing power of attorneyA power of attorney that only takes effect once a stated condition is met — usually a doctor confirming the person can no longer manage their affairs.
• Trusted contact personSomebody named on a financial account whom the firm may contact if it is worried — about the account holder's health, or about a transaction.
• Authorized signerSomebody a bank permits to transact on an account they do not own. It is access without ownership, and it ends at the account holder's death.
• Successor agentThe person a power of attorney names to act if the first-named agent cannot. Without one, the document can be left with nobody able to use it.

Sahvelo guidance that uses this

• Power of attorney
• Essential documents