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Durable Power of Attorney Forms

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.

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 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” Definition

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

Glossary

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.

How to Get Durable Power of Attorney

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

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.

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; and
  • 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; and
  • 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 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)

  1. 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.
  2. Bank or Credit Union – Go to a financial institution as most employees at banks are licensed notary publics.
  3. Find a Notary – Hire a notary to meet with the principal and agent. Use directories 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 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”.

Signing Requirements: By State

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.

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 Notarized 468 § 105
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
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
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 statute definitions 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 468 § 102
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 § 15-1072
Oregon § 127.002
Pennsylvania § 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

Frequently Asked Questions (FAQ)

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 writes a revocation canceling durable power of attorney.

Does an Agent have powers after the Principal’s death?

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

Can I write my own durable power of attorney?

Yes. You will need the complete the statutory form and authorize in accordance with the Signing Requirements for your State.

Who can witness a durable power of attorney?

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.

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 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.

Can I cancel a durable power of attorney after the principal is incapacitated?

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.

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 under such an event.

When does a durable power of attorney become effective?

A durable power of attorney becomes effective after it has been signed under State Requirements.

Can a durable power of attorney be changed?

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.

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

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.

Sample

Download: Adobe PDF, MS Word (.docx), OpenDocument

How to Write Durable Power of Attorney

Download: Adobe PDF, MS Word (.docx), OpenDocument

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:

  1. The date in which the principal is completing the POA (day, month, and year);
  2. The principal’s full name; and their
  3. Street address, and
  4. State;
  5. The full name of the agent; and their
  6. Street address, and
  7. 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.

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 register, inspect,