Durable Power of Attorney

A Power of Attorney is a legal document delegating authority from one person to another. In the document, the maker of the Power of Attorney (the “principal”) grants the right to act on the maker’s behalf to an agent. What authority is granted depends on the specific language of the Power of Attorney. A person giving a Power of Attorney may make it very broad or may limit it to certain specific acts.


A Power of Attorney may be used to give another the right to sell a car, home or other property. A Power of Attorney might be used to allow another to access bank accounts, sign a contract, make health care decisions, handle financial transactions or sign legal documents for the principal. A Power of Attorney may give others the right to do almost any legal act that the maker of the Power of Attorney could do, including the ability to create trusts and make gifts. (alternative to guardianship)

A power of attorney is an important and powerful legal document as it is authority for someone to act in someone else’s legal capacity. It should be drawn by a lawyer to meet the person’s specific circumstances. Pre-printed forms may fail to provide the protection desired.

An agent may perform only those acts specified in the Power of Attorney and any acts reasonably necessary to give effect to the specified acts. If an agent is unsure whether he or she is authorized to do a particular act, the agent should consult the lawyer who prepared the document or other legal counsel.

The Power of Attorney is effective as soon as the principal signs it. However, a Durable Power of Attorney executed prior to Oct. 1, 2011 that is contingent on the incapacity of the principal (sometimes called a “springing” power), remains valid but is not effective until the principal’s incapacity has been certified by a physician. Springing Powers of Attorney may not be created after Sept. 30, 2011.

The principal may hold the Power of Attorney document until such time as help is needed and then give it to the agent. Often, the lawyer may fulfill this important role. For example, the principal may leave the Power of Attorney with the lawyer who prepared it, asking the lawyer to deliver it to the agent under certain specific conditions. Because the lawyer may not know if and when the principal is incapacitated, the principal should let the agent know that the lawyer has retained the signed document and will deliver it as directed. If the principal does not want the agent to be able to use the Power of Attorney until it is delivered, the Power of Attorney should clearly require the agent to possess the original because copies of signed Powers of Attorney are sufficient for acceptance by third parties.

May a Power of Attorney avoid the need for guardianship?

Yes. If the alleged incapacitated person executed a valid Durable Power of Attorney prior to his or her incapacity, it may not be necessary for the court to appoint a guardian since the agent already has the authority to act for the principal. As long as the agent has all necessary powers, it may not be necessary to file guardianship proceedings and, even when filed, guardianship may be averted by showing the court that a Durable Power of Attorney exists and that it is appropriate to allow the agent to act on the principal’s behalf.

What is the relationship between a Declaration of Living Will and Power of Attorney?

A declaration of living will specifies a person’s wishes as to the provision or termination of medical procedures when the person is diagnosed with a terminal condition, has an end-stage condition, or is in a persistent vegetative state. A living will and a health care surrogate designation are termed “health care advance directives” because they are made in advance of incapacity and need. If a person is unable to understand or unable to communicate with a doctor, a living will is a legally enforceable method of making sure the person’s wishes are honored. Whether a person has a living will, a person’s agent may make health care decisions if the Durable Power of Attorney specifically gives this right.

What is a Health Care Surrogate Designation and how does it differ from a Power of Attorney?

A Health Care Surrogate Designation is a document in which the principal designates someone else to make health care decisions if the principal is unable to make those decisions. Unlike a Power of Attorney, a health care surrogate decision-maker has no authority to act until such time as the attending physician has determined the principal lacks the capacity to make informed health care decisions. (In instances where the attending physician has a question as to whether the principal lacks capacity, a second physician must agree with the attending physician’s conclusion that the principal lacks the capacity to make medical decisions before a surrogate decision-maker’s authority is commenced.) Many medical providers prefer a designation of health care surrogate for health care decisions because the document is limited to health care. However, a Durable Power of Attorney specifically for health care may enable the agent to assist the principal in health care decisions even though the principal may not completely lack capacity.