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Durable Power of Attorney Forms

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A durable power of attorney form is completed by a principle to appoint an agent to make financial decisions on their behalf, whose powers remain in effect in perpetuity. The term “durable” refers to the form’s ability to remain valid even if the principal should become incapacitated. After the form has been completed, it must be signed with witnesses and/or a notary public, and then the agent can perform their duties and present the document for proof if need be.

By State

Contents

What is Durable Power of Attorney?

Durable power of attorney is the financial representation of someone else, incapacitated or not, for an indefinite period. Under such designation, an agent will have the power to handle assets, real estate, and make business decisions on behalf of the principal. To get durable power of attorney, a principal must obtain the statutory form provided by their state and sign it in accordance with state law. Afterwards, the agent may use a copy of the document to legally represent the principal for the financial powers listed in the form.

“Durable” Definition

Durable,” with respect to a power of attorney, means not terminated by the principal’s incapacity.

Glossary

An “Agent” (also referred to as an “attorney-in-fact” or “surrogate”) is the person authorized to act on behalf of the principal.

An “alternate agent” (“successor agent” or “2nd agent”) is a person authorized to act on behalf of the principal ONLY IF the main agent is not available.

Conservatorship” (also known as “legal guardianship”) is when a court appoints a conservator to handle someone else’s finances if they cannot do so for themselves. Often filed when a person becomes incapacitated and they don’t have a power of attorney document.

Durable” refers to the period of effectiveness of a power of attorney document; i.e., the powers contained therein will continue even if the principal can no longer make decisions for themselves.

Incapacity” refers to the principal’s inability to make evaluated decisions in a clear manner due to impairment or another type of hindrance, be it physical, mental, or situational.

A “Principal” is the person authorizing someone else to act on their behalf.

Signing” refers to the signing requirements in the State of the principal.

How to Get Durable Power of Attorney

Obtaining durable power of attorney means a principal grants someone else (the agent) the power to make financial decisions on their behalf. The agent must agree to the terms and conditions and sign the form in accordance with state requirements. After the form has been signed, the designation begins immediately with the agent able to perform tasks and sign other documents on the principal’s behalf.

Step 1 – Choose an Agent

It’s recommended that an agent (attorney-in-fact) be the principal’s spouse, a family member, or a close friend (in that order). An agent will have the ultimate authority to act in the principal’s place regarding financial matters. In addition to the main agent, the principal should select up to two (2) alternate agents, who only serve as the principal’s main agent should the primary attorney-in-fact be a poor fit for the role, pass away, or be unavailable/unwilling to perform their duties.

Step 2 – Deciding Powers

A typical statutory durable power of attorney allows a principal to select any of the following powers:

  • Real Property
  • Tangible Personal Property
  • Stocks and Bonds
  • Commodities and Options
  • Banks and Other Financial Institutions
  • Operation of Entity or Business
  • Insurance and Annuities
  • Estates, Trusts, and Other Beneficial Interests
  • Claims and Litigation
  • Personal and Family Maintenance
  • Benefits from Governmental Programs or Civil or Military Service
  • Retirement Plans
  • Taxes

Step 3 – Granting Specific Authority

In a special section of a durable power of attorney, the form will ask if the agent will have additional authority, such as the ability to:

  • Create, amend, revoke, or terminate an inter vivos trust
  • Make gifts
  • Create or change rights of survivorship
  • Create or change a beneficiary designation
  • Authorize another person to be an agent

Depending on the state, there may be additional financial powers offered.

Step 4 – Signing the Form

When it comes time to sign the document, the signing requirements established in the principal’s state of residence must be followed. This involves the principal and agent(s) signing in the presence of witnesses and/or a notary public.

Find a Notary (3 options)

  1. Online Notary – Use the online notary process on the eSign homepage where the principal, agent(s), and any witnesses may appear in front of a camera with government identification.
  2. Bank or Credit Union – Go to a financial institution as most employees at banks are licensed notaries public.
  3. Find a Notary – Hire a notary to meet with the principal and agent in person. Use an online directory such as 123Notary.com.

Step 5 – Acting as an Agent

After a durable power of attorney has been completed and signed, the agent may begin acting on the principal’s behalf. The agent will be required to have a duplicate copy with them at all times and, when signing forms for the principal, sign in the following manner: “[Principal’s Name] by [Agent’s Name] acting as Agent”.

Signing Requirements: By State

Below are the signing requirements for durable power of attorney forms for all fifty (50) states. It’s important to note that in most states a witness cannot be a family member, medical staff, a beneficiary in the principal’s last will and testament, or an individual under eighteen (18) years of age.

STATE SIGNING REQUIREMENTS STATUTE
Alabama Notarized § 26-1A-105
Alaska Notarized § 13.26.600
Arizona Notarized & 1 Witness § 14-5501
Arkansas Notarized § 28-68-105
California Notarized OR 2 Witnesses § 4121(c)
Colorado Notarized § 15-14-705
Connecticut Notarized & 2 Witnesses § 1-350d
Delaware Notarized & 1 Witness § 49A-105(a)
Florida Notarized & 2 Witnesses § 709.2105(2)
Georgia Notarized & 1 Witness § 10-6B-5(a)
Hawaii Notarized § 551E-3(b)
Idaho Notarized § 15-12-105
Illinois Notarized & 1 Witness § 755 ILCS 45/3-3(b)
Indiana Notarized IC 30-5-4-1
Iowa Notarized § 633B.105
Kansas Notarized & 2 Witnesses § 58-629(e)
Kentucky Notarized § 457.050
Louisiana N/A No statute
Maine Notarized § 5-905(1)
Maryland Notarized & 2 Witnesses § 17-110
Massachusetts N/A No statute
Michigan Notarized & 2 Witnesses § 700.5501(2)
Minnesota Notarized § 523.01
Mississippi N/A No statute
Missouri N/A No statute
Montana Notarized § 72-31-305
Nebraska Notarized § 30-4041
Nevada Notarized § 162A.220
New Hampshire N/A No statute
New Jersey Notarized & 1 Witness § 46:2B-8.9 & 14-2.1
New Mexico Notarized § 45-5b-301
New York Notarized § 5-1501B(b)
North Carolina Notarized § 32C-1-105
North Dakota N/A No statute
Ohio Notarized § 1337.06
Oklahoma Notarized § 15-1003
Oregon N/A No statute
Pennsylvania Notarized & 2 Witnesses § 5601(b)(3)
Rhode Island Notarized § 18-16-2
South Carolina Notarized & 2 Witnesses § 62-8-105
South Dakota N/A No statute
Tennessee N/A No statute
Texas Notarized § 752.051
Utah Notarized § 75-9-105
Vermont Notarized & 1 Witness § 3503
Virginia Notarized § 64.2-1603
Washington Notarized OR 2 Witnesses § 11.125.050
West Virginia Notarized § 39B-1-105
Wisconsin Notarized § 244.05
Wyoming Notarized § 3-9-105

Power of Attorney Definitions: By State

The state-by-state statutes for important power of attorney terms have been provided below:

STATE DEFINITIONS (STATUTE)
Alabama § 26-1A-102
Alaska § 13.26.695
Arizona § 14-5101
Arkansas § 28-68-102
California § 4022
Colorado § 15-14-702
Connecticut § 1-350a
Delaware § 49A-102
Florida § 709.2102
Georgia § 10-6B-2
Hawaii § 551E-1
Idaho § 15-12-102
Illinois § 755 ILCS 45/2-3
Indiana IC 30-5-2
Iowa § 633B.102
Kansas § 58-651
Kentucky § 457.020
Louisiana No definitions
Maine § 5-902
Maryland § 17-101
Massachusetts No definitions
Michigan § 700.5501
Minnesota § 523.03
Mississippi § 87-3-105
Missouri § 404.703
Montana § 72-31-302
Nebraska § 30-4002
Nevada § 162A.010
New Hampshire § 564-E:102
New Jersey § 46:2B-10
New Mexico § 45-5b-102
New York § 5-1501
North Carolina § 32C-1-102
North Dakota § 30.1-30-01
Ohio § 1337.22
Oklahoma 58 O.S. § 3002
Oregon § 127.002
Pennsylvania § 5601(f) and § 5604(a)
Rhode Island No definitions
South Carolina § 62-8-102
South Dakota § 59-12-1
Tennessee § 34-6-102
Texas § 751.002
Utah § 75-9-102
Vermont § 3501
Virginia § 64.2-1600
Washington § 11.125.020
West Virginia § 39B-1-102
Wisconsin § 244.02
Wyoming § 3-9-101

Sample

Download: PDF, Word (.docx), OpenDocument

How to Write Durable Power of Attorney

Download: PDF, Word (.docx), OpenDocument

Step 1 – Party Information

The first paragraph of the form provides contact information for the principal (assigning powers) and the agent (receiving powers). The following information will need to be entered:

  1. The date the principal is completing the POA (day, month, and year).
  2. The principal’s full name.
  3. The principal’s street address.
  4. The principal’s state of residence.
  5. The agent’s full name.
  6. The agent’s street address.
  7. The agent’s state of residence.

Important note: By completing the form, the principal acknowledges that they will be revoking any financial POAs that were previously created.

Step 2 – When the POA Becomes Effective

The principal has two (2) options to choose from in regard to the effective date of the power of attorney document. The must inscribe their initials next to only one (1) of the following options:

  • Option A (Immediate) – By initialing this option, the POA will go into effect the moment the POA is signed. In other words, the agent will have the right to exercise every power that was granted to them immediately upon execution.
  • Option B (Springing) – This option makes the POA only go into effect once the principal is deemed medically incapacitated by their physician, i.e., unable to communicate/make decisions.

Step 3 – Powers

The principal can choose to grant their agent any of the twelve (12) powers listed in this section of the form. Furthermore, they can add any powers not already listed in the special instructions subsection. To select a power, the principal must place their initials next to each power they wish to grant. The agent will not be able to complete actions and make decisions regarding any powers that are not initialed.

After this, the principal will need to enter the name of the state in which the power of attorney will be used (not necessarily the state in which the principal resides).

Step 4 – Principal’s Signature

The document should be signed in accordance with the requirements in the state where the agent will be using the POA. For example, if the principal lives in Montana, but they’ll be signing a POA to have their agent perform tasks in Florida, the form should be signed as required by Florida law (i.e., notarization and two (2) witnesses).

Step 5 – Agent Acceptance of Appointment

On the last page (5) of the document, the agent will need to 1) print their name on the line provided and 2) sign their name. If the agent wishes to have their signature notarized, there is an acknowledgment section provided at the bottom of the page.

Related Forms

General ($) Power of Attorney – The non-durable variant of the Durable (Financial) POA.

Limited Power of Attorney – A highly customizable form that can be used for assigning virtually any non-durable powers.

Tax Power of Attorney – A state-specific document used for granting tax permissions to a CPA or other tax professional.

Vehicle Power of Attorney – Used for permitting another person to perform tasks on behalf of the principal relating to their vehicle, such as registration, applying for titles, purchasing and selling vehicles, and recording liens.


Frequently Asked Questions

How to sign for a principal as an agent?

The agent will be required to always sign documents on behalf of the principal in the following format:

“[Principal’s Name] by [Agent’s Name] acting as Agent”

Does a durable power of attorney expire?

A durable power of attorney does not expire unless the principal dies or executes a revocation canceling the durable power of attorney document.

Does an agent have powers after the principal's death?

An agent has no powers after the principal’s death.

Can the principal write their own durable power of attorney?

Yes. The principal will need the complete the statutory form and authorize in accordance with the signing requirements for their state.

Who can witness a durable power of attorney?

In most states, a witness can be any individual who is eighteen (18) years of age or older, not a medical professional caring for the principal, and not listed as a beneficiary in the principal’s last will and testament.

Can a durable power of attorney override a will?

A durable power of attorney does not override a last will and testament or a Living Will. In some states, the principal can elect the agent to have powers to change their last will and testament although this is not recommended.

Does a durable power of attorney include medical decisions?

No, a durable power of attorney only allows the agent to handle financial decisions. If the principal would like an agent to act for them for medical decisions, an Advance Directive or Medical Power of Attorney must be executed.

Can a durable power of attorney be canceled after the principal is incapacitated?

If the agent named in a durable power of attorney is taking advantage of the principal and the family would like to terminate power of attorney, they will have to apply as a guardian or conservator. This is accomplished by filing a petition with the local court, which should be handled by an attorney.

What is the difference between a durable and general power of attorney?

Durable remains valid if the principal becomes incapacitated while the general power of attorney becomes invalid upon such an occurrence.

When does a durable power of attorney become effective?

A durable power of attorney becomes effective after it has been signed as per  state requirements.

Can a durable power of attorney be changed?

Yes, a durable power of attorney can be amended by completing a new form. After signing, the new form becomes the only valid document making the previous version void and ineligible for use.

Does an agent have a fiduciary duty in a durable power of attorney?

Yes, as per of 38 U.S. Code § 5506, a “fiduciary” is defined as follows:

A person who (1) is a guardian, curator, conservator, committee, or person legally vested with the responsibility or care of a claimant (or a claimant’s estate) or of a beneficiary (or a beneficiary’s estate); or (2) any other person having been appointed in a representative capacity to receive money paid under any of the laws administered by the Secretary for the use and benefit of a minor, incompetent, or other beneficiary.