The critical distinction in powers of attorney is durability—whether the document remains effective if you become incapacitated. Understanding the difference between durable and non-durable powers of attorney helps you choose the right tool for your needs. For most planning purposes, durable powers of attorney are essential because they continue working precisely when you need them most.
Using the wrong type of POA can leave you without coverage at critical moments.
What "Durable" Means
A durable power of attorney contains language specifying it remains effective even if the principal becomes incapacitated. The magic words vary by state but typically include "This power of attorney shall not be affected by subsequent disability or incapacity of the principal" or similar language.
Durability must be explicitly stated. Without durability language, most states presume the POA terminates upon incapacity—exactly when you might need it most.
Durable POAs remain effective from signing through incapacity until death, revocation, or specified termination events.
Non-Durable Powers of Attorney
A non-durable power of attorney (sometimes called a general or conventional POA) terminates when the principal becomes incapacitated. If you can't make decisions for yourself, your agent loses authority.
Non-durable POAs are useful for specific, time-limited purposes: authorizing someone to handle a real estate closing while you're traveling, managing specific transactions, or acting during a defined period when you're unavailable but competent.
Non-durable POAs are not appropriate for incapacity planning. They fail precisely when help is most needed.
Immediate vs. Springing POAs
Separate from durability is the question of when the POA takes effect. Immediate (or present) POAs are effective upon signing—your agent can act right away.
Springing POAs "spring" into effect only upon a triggering event, typically incapacity. They provide protection against premature use but require proving the trigger event occurred.
Springing POAs can create practical problems. Who determines incapacity? What evidence is required? Financial institutions may resist honoring springing POAs until incapacity is clearly established.
Advantages of Immediate Durable POAs
Most estate planners recommend immediate durable POAs. They're effective immediately, continue through incapacity, and avoid proof-of-incapacity disputes.
The concern with immediate POAs—that your agent could act while you're still competent—is addressed by choosing a trustworthy agent. If you don't trust someone to refrain from acting until needed, you shouldn't name them as agent at all.
Immediate POAs also allow agents to help with routine matters before incapacity—banking while you're hospitalized, bill paying during extended travel, or handling transactions when you're simply unavailable.
When Springing POAs Make Sense
Some people prefer springing POAs for legitimate reasons. If you're uncomfortable with anyone having current authority over your finances, a springing POA limits access until truly needed.
If using a springing POA, carefully define the triggering event. Requiring certification by your physician or two doctors provides clarity. Specify what documentation proves incapacity to smooth acceptance by financial institutions.
Consider whether practical difficulties outweigh the comfort of springing provisions. Delays while proving incapacity can cause real problems.
State Variations
State laws governing POAs vary significantly. Some states have adopted the Uniform Power of Attorney Act; others have unique statutes. What creates a valid durable POA in one state may not work in another.
If you own property in multiple states or may need your POA honored across state lines, ensure your document meets requirements everywhere it might be used.
Some states have statutory forms that, if used, must be accepted by financial institutions. Using these forms can prevent acceptance problems.
Maintaining Your POA
Review your POA periodically. Is your agent still the right choice? Are the powers adequate? Has the document been in place so long that institutions may question whether you've revoked it?
Some practitioners recommend "re-signing" POAs every few years to demonstrate continued intent. This isn't legally required but can prevent acceptance issues.
Getting Legal Help
Choosing between durable and non-durable, immediate and springing POAs involves understanding your goals and risk tolerance. An estate planning attorney helps you select the right approach, drafts documents meeting state requirements, and ensures your POA works when needed. Given the importance of these documents in protecting you during vulnerability, professional drafting is worthwhile. Generic forms may not address the nuances that matter for your situation.