A durable power of attorney form is completed by a principle that selects an agent to handle and make financial decisions on their behalf. The term “durable” refers to the form’s ability to remain valid even if the principal should become incapacitated. After the form has been written, it must be signed with witnesses and/or a notary public and then may be used by the agent.
- New Hampshire
- New Jersey
- New Mexico
- New York
- North Carolina
- North Dakota
- Rhode Island
- South Carolina
- South Dakota
- West Virginia
Durable power of attorney is the financial representation of someone else, incapacitated or not, for an indefinite period. Under such designation, an agent will most commonly have limitless powers to handle assets, real estate, and make business decisions on behalf of the principal. To get durable power of attorney, a principal must obtain their statutory form and sign it in accordance with state law. Afterward, the agent may use a copy of the document to legally represent the principal for the financial powers listed in the form.
“Durable,” with respect to a power of attorney, means not terminated by the principal’s incapacity.
An “Agent“, or “attorney-in-fact” or “surrogate”, is the person authorized to act on behalf of the principal.
An “alternate agent“, or “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 for someone to handle their finances if they cannot do so for themselves. Often filed for when a person becomes incapacitated and they don’t have a power of attorney document.
“Durable” is referenced to the fact that the document will live even if the principal can no longer make conscious decisions for themselves.
“Incapacity” refers to the principal’s incapacitation caused by the impairment to think and make evaluated decisions in a clear manner.
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.
Getting a durable power of attorney requires a principal to have someone that agrees, in writing, to make financial decisions on their behalf and to sign in accordance with State Requirements. After the form has been signed, the designation begins immediately with the agent able to act and sign on the principal’s behalf.
- Step 1 – Choose an Agent
- Step 2 – Deciding Powers
- Step 3 – Granting Specific Authority
- Step 4 – Signing the Form
- Step 5 – Acting as an Agent
An agent (attorney-in-fact) is recommended to be the principal’s spouse, close family member, or 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 in a time of need.
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; and
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; and
- Authorize another person to be an agent.
Depending on the state, there may be additional financial powers offered.
When it comes time to sign the document, the Signing Requirements for the State must be followed. This commonly involves the principal and agent(s) signing in the presence of witness(es) and/or a notary public.
Find a Notary (3 options)
- Online Notary – Use the online notary process on our Homepage where the principal, agent(s), and any Witnesses may appear in front of a camera with government identification.
- Bank or Credit Union – Go to a financial institution as most employees at banks are licensed notary publics.
- Find a Notary – Hire a notary to meet with the principal and agent. Use directories such as 123Notary.com.
After a durable power of attorney has been completed and signed, the agent may begin acting in the principal’s presence. The agent will be required to have a duplicate copy with them at all times and, when signing on the principal’s behalf, sign in the following manner: “[Principal’s Name] by [Agent’s Name] acting as Agent”.
Below are the signing requirements for a durable power of attorney forms for all fifty (50) States. It must be made known that in most states, a witness cannot be a family member, medical staff, a beneficiary in the principal’s Last Will and Testament, or be under eighteen (18) years of age.
|Arizona||Notarized & 1 Witness||§ 14-5501|
|California||Notarized OR 2 Witnesses||§ 4121(c)|
|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)|
|Illinois||Notarized & 1 Witness||§ 755 ILCS 45/3-3(b)|
|Kansas||Notarized & 2 Witnesses||§ 58-629(e)|
|Maryland||Notarized & 2 Witnesses||§ 17-110|
|Michigan||Notarized & 2 Witnesses||§ 700.5501(2)|
|Mississippi||Notarized||468 § 105|
|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|
|North Carolina||Notarized||§ 32C-1-105|
|North Dakota||N/A||No statute|
|Pennsylvania||Notarized & 2 Witnesses||§ 5601|
|Rhode Island||Notarized||§ 18-16-2|
|South Carolina||Notarized & 2 Witnesses||§ 62-8-105|
|South Dakota||N/A||No statute|
|Vermont||Notarized & 1 Witness||§ 3503|
|Washington||Notarized OR 2 Witnesses||§ 11.125.050|
|West Virginia||Notarized||§ 39B-1-105|
The state-by-state statute definitions for important power of attorney terms have been provided below:
|Illinois||§ 755 ILCS 45/2-3|
|Mississippi||468 § 102|
|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|
|Rhode Island||No definitions|
|South Carolina||§ 62-8-102|
|South Dakota||§ 59-12-1|
|West Virginia||§ 39B-1-102|
- How to sign for a Principal as an Agent?
- Does a durable power of attorney expire?
- Does an Agent have powers after the Principal’s death?
- Can I write my own durable power of attorney?
- Who can witness a durable power of attorney?
- Can a durable power of attorney override a will?
- Does a durable power of attorney include medical decisions?
- Can I cancel a durable power of attorney after the Principal is incapacitated?
- What is the difference between a durable and general power of attorney?
- When does a durable power of attorney become effective?
- Can a durable power of attorney be changed?
- Does an Agent have a fiduciary duty in a durable power of attorney?
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”
A durable power of attorney does not expire unless the principal dies or writes a revocation canceling durable power of attorney.
An agent has no powers after the principal’s death.
Yes. You will need the complete the statutory form and authorize in accordance with the Signing Requirements for your State.
In most States, a witness can be any person above eighteen (18) years of age, non-medical staff (i.e. nurses, doctors, etc.), and cannot be a person listed as a beneficiary in a Last Will and Testament.
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.
No, a durable power of attorney only allows financial decisions to be handled. If the principal would like an agent to act for them for medical decisions, an Advance Directive or Medical Power of Attorney must be signed.
If an agent is taking advantage of a principal and the family would like the power of attorney canceled they will have to apply as a guardian or conservator in their local court. To do yourself a petition will be required to be filed but this is recommended to be handled by an attorney.
Durable remains valid if the principal becomes incapacitated while the general power of attorney becomes invalid under such an event.
A durable power of attorney becomes effective after it has been signed under State Requirements.
Yes, a durable power of attorney is changed by writing a new form. After signing, the new form becomes the only valid document making the previous version void and ineligible for use.
Yes, in the context of 38 U.S. Code § 5506 a “fiduciary” means:
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.
Step 1 – Party Information
The first paragraph of the form gives an overview of who the principal (assigning powers) and the agent (receiving powers) are. The following information will need to be entered:
- The date in which the principal is completing the POA (day, month, and year);
- The principal’s full name; and their
- Street address, and
- The full name of the agent; and their
- Street address, and
- State of residence.
Important note: By completing the form, the principal acknowledges that they will be revoking any financial POAs that were created previously.
Step 2 – When the POA Becomes Effective
The principal has two (2) major options for when they can make the power of attorney go into effect. They must choose one (1) of the options by initially their name on the line to the left of either choice.
- 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 in Step 3 below.
- Option B (Springing) – This option makes the POA only go into effect once the principal is deemed as medically incapacitated (unable to communicate/make decisions) by the principal’s physician.
Step 3 – Powers
The principal has twelve (12) types of powers they can grant to the agent, in addition to the last option in which the principal can add any powers not already listed. 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 initialing any and all options, 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 (in this case be notarized with 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 directly after “I,” and 2) sign their name. If the agent wishes to have their signature notarized, space has been provided for such at the bottom of the page.
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 register, inspect,