Durable power of attorney

How it works

A durable power of attorney lets an agent manage affairs within the authority granted by the principal. The authority continues through the principal's incapacity, which distinguishes durability from a power that ends at incapacity.

State rules define durability in different terms. Alaska defines it by whether incapacity terminates the authority. Delaware also refers to statutory requirements. Massachusetts requires written language showing intent for authority to continue despite later disability or incapacity. Wisconsin treats a power of attorney as durable unless it expressly says incapacity terminates it.

Where it shows up for owners of businesses, real estate and private investments

A durable power of attorney can cover financial activities involving an owner's affairs. The principal grants an agent authority over specified matters, and that authority continues if the principal becomes incapacitated.

For an owner with business, real estate or investment affairs, the document is relevant to who can handle financial matters during incapacity. The precise scope depends on the powers granted in the document.

Points that are easy to confuse

Durability describes what happens to an agent's authority if the principal becomes incapacitated. It does not by itself describe which affairs the agent may manage, because the authority covers the matters specified in the document.

State definitions are not identical. Massachusetts describes written language of intent and addresses continuation when no termination time is stated. Wisconsin uses a default rule unless the document expressly terminates authority at incapacity. Alaska and Delaware define durability by reference to incapacity, with Delaware also referring to statutory requirements.

Common questions