Power of Attorney

The Difference between Durable & Non -Durable Power Of Attorney

calendar12 Jun, 2023
timeReading Time: 4 Minutes
The Difference between Durable & Non -Durable Power Of Attorney

Power of attorney is a legal record allowing a person to give others powers to act on his behalf. The person who grants power is the principal, and the person to whom powers are granted is the POA agent. A principal can appoint anyone as his POA agent; a POA agent doesn’t need to be a lawyer. POA agents can be spouses, adult children, relatives, friends, or anyone the principal can trust.

There are various categories of power of attorney; one of the most important is durable power of attorney. A durable power of attorney specifies that the POA agent has the right to act on the principal’s behalf even if the principal becomes disabled and unable to make decisions. This category of power of attorney ends when it is terminated by the principal or at the time of the principal’s death.

Standard Powers That Can Be Granted With Powers Of Attorney

Although it is up to the principal to decide what powers a POA agent should have, some powers typically granted are as follows:

  • Making financial decisions
  • Managing property, including purchasing and selling of the same
  • Trading
  • Making and managing investments
  • Lending money
  • Filing tax returns
  • Giving presents
  • Making decisions related to healthcare.

It is a vital decision to make while writing the power of attorney whether the principal wants a general or specific type of power of attorney. A general power of attorney includes financial, legal, and health-related powers. However, a limited power of attorney accomplishes what it says in the agreement; it restricts the agent’s authority or decision-making power.

Limited power of attorney can also be referred to as extraordinary power of attorney, as it is made for specific actions or events and specific time limits, such as signing contracts or agreements in case of the principal’s incapacity.

An individual always stresses the significance of a thorough plan, which should contain both a will and a power of attorney as necessary components. Understanding how the two types of power of attorney differ will help the principal decide which type of power he wants to create. Which category of power of attorney will meet and fulfil his exact needs?

Durable Power of Attorney

The durable power of attorney will exist in effect even if the principal becomes incapable. A durable power of attorney includes powers related to finance, health, and legal affairs[1]. A durable power of attorney needs to incorporate some particular clauses, which makes it different from a non-durable power of attorney. These clauses should be extremely carefully written and show the clear Difference between a durable and non-durable power of attorney. A durable power of attorney lapses after the death of the person granting it.

Non-Durable Power Of Attorney

The durable power of attorney lapses when the principal is incapable or at the time of the principal’s death. It means that if any of the abovementioned situations arise, the power of attorney agent will lose his powers and authority over the decision-making affairs. In this situation, a court must name a guardian or conservator to handle the principal’s personal and professional matters.

A power of attorney is an essential document to plan for the future, but it may also be the riskiest one you ever sign. It is risky because it frequently gives power to someone else about the broad areas of the principal’s life, like legal, financial, or health-related matters. Nevertheless, making a power of attorney needs to be considered for future planning for managing and handling legal and financial matters. It only consumes a little time to make and operate one, and it can be utilized in various ways to save you money and time for a long duration. A power of attorney is a crucial support system for the principal if he becomes incapable.

Some restrictions may be added to the POA agreement by the principal, which can limit the agent’s certain powers if the principal is concerned about granting someone extensive authority to make decisions on his behalf.

Even if a power of attorney is legitimate, many financial institutions hesitate to accept one over three to five years old. It will be beneficial to update the power of attorney occasionally.

The Difference between A Durable Power Of Attorney and Non-Durable Power Of Attorney

A power of attorney is called a Durable Power of Attorney when it stipulates that the agent’s authority to act on behalf of the principal will remain in effect even in the event of the principal’s incapacity. Durable Power of Attorney shall not be automatically terminated. An enduring power of attorney lasts either until the grantor’s or principal’s death or until the principal takes steps to revoke or terminate the authority he gave to his POA agent.

Non-durable power of attorney expires when the principal becomes incapable. A power of attorney is a powerful legal tool that can be used in various circumstances, including helping to fulfil legal obligations and duties to a loved one. However, its fragility under stress makes it unsuitable for essential end-of-life decisions.

However, there are certain situations under which the court will cancel or quash the durable power of attorney. Especially in the case where the POA agent is the spouse of a principal, and they are divorced, but the principal hasn’t updated it in his power of attorney,

Another thing to note is that some states consider a power of attorney permanent unless expressly stated otherwise. Additionally, it is essential to mention whether a power of attorney is durable, or else the court will consider it a durable power of attorney.

The principal wants to avoid being in a circumstance where he has to wait weeks for the courts to intervene. The principal doesn’t want to wait for the lawsuit’s outcome to be in his favour or to help a loved one. It’s crucial to have a power of attorney, whether durable or non-durable. Additionally, it’s beneficial to ensure everything is still in order and should be updated annually or regularly.

Conclusion

Power of attorney is a legal document allowing a person to give others powers to act on his behalf. Powers to handle or manage affairs relating to financial, legal, or health matters can be granted to the POA agent. There are different types of Power of Attorney, so it is necessary to understand which will fulfil the principal’s exact needs. It is also crucial to write or mention which type of power of attorney the principal wants to create or has created; if nothing is mentioned, the court will consider it a durable power of attorney. Additionally, updating a power of attorney from time to time is imperative.

Read Our Article: What Is A Power Of Attorney And Why Is It Important?

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