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Conditions for Creating Durable or Non-Durable Power of Attorney

In a previous post, we discussed the springing power of attorney. In the context of comprehensive estate planning, this type of POA creates a delay in the agent's ability to invoke the power. As such, it is essential to be abundantly clear in the document what conditions have to be in place for the power of attorney to be sprung.

In this post, we look more deeply into the difference between two other types of power of attorney, durable and non-durable. Each POA is different and it's important for the estate plan creator to understand the potential scope or limits of action that each instrument establishes.

Durable POA

The durable power of attorney is probably what readers think of, if they consider POAs at all. With its execution, the granting principal relinquishes the power to make his or her own health care and/or financial decisions to another party. Obviously, whoever is selected for the job needs to be someone the principal trusts deeply to act in his or her best interest. And as a matter of common courtesy, it is recommended that the person chosen be consulted before the POA document is formalized.

Non-durable POA

As you might conclude from the name, the durable power of attorney is long lasting. It becomes effective when the principal is unable to make decisions and remains in force as long as the incapacitation lasts. The non-durable power of attorney is temporary.

For example, imagine that you are selling a home. Due to an emergency, you are unable to make it to the closing and the signing can't be rescheduled. With a non-durable power of attorney, you can grant authority to another to execute only the necessary documents on your behalf. Another distinct difference with the non-durable form is that it expires if the person assigning the power becomes incapacitated.

Because every person's needs differ, it's important to be sure that the legal instruments used in planning are appropriate for what's required. Consulting a skilled attorney is the best way ensure your interests are being met and protected.

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