What Is a Durable Power of Attorney (DPOA)?

A durable power of attorney (DPOA) is a legally binding document that authorizes someone to delegate your legal, financial and health responsibilities, even if you become incapacitated. Having a DPOA helps protect yourself and your loved ones in the face of a potential crisis. Learning about the types of DPOA and the steps to sign up can prepare you for any unexpected roadblocks.

Lindsey Crossmier, writer for RetireGuide
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APA Crossmier, L. (2022, August 10). What Is a Durable Power of Attorney (DPOA)? RetireGuide.com. Retrieved August 14, 2022, from https://www.retireguide.com/retirement-planning/elder-law/durable-power-of-attorney/

MLA Crossmier, Lindsey. "What Is a Durable Power of Attorney (DPOA)?" RetireGuide.com, 10 Aug 2022, https://www.retireguide.com/retirement-planning/elder-law/durable-power-of-attorney/.

Chicago Crossmier, Lindsey. "What Is a Durable Power of Attorney (DPOA)?" RetireGuide.com. Last modified August 10, 2022. https://www.retireguide.com/retirement-planning/elder-law/durable-power-of-attorney/.

Durable Power of Attorney (DPOA) Definition

A DPOA allows one or more individuals to overtake another’s financial, legal and medical decisions, even if they become disabled or incapacitated. Most get a DPOA as a precaution in case they ever get seriously injured. This way, there won’t be any legal roadblocks or stress on your loved ones during an emergency.

The rules and limits are stated in the DPOA document at the time of signing. The responsibilities could start immediately or become active later by a triggering event.

Did you know?
Even though almost half of adults over 55 worry about lacking an advocate as they age, only 33% of them have a durable power of attorney. Getting a trustworthy agent with a durable power of attorney can help eliminate some of these concerns.
Source: Bank of America Corporation

There are typically two people involved in a power of attorney — the agent and the principal. The person you authorize to handle your legal, financial or medical decisions is known as your agent, or attorney-in-fact. Being an attorney-in-fact means the person is allowed to act on your behalf, but not to practice law. The person handing power to the agent is the principal.

Know that you can have multiple agents if needed, but it is not required. You should focus on choosing people you trust.

“The most important part of choosing an agent is to have backups available,” Brett Halperin, an estate planning and elder law attorney from Halperin Law Group, told RetireGuide.

“When your DPOA document is drafted, the backups won’t have power unless something happens to your primary agent. Your backup shouldn’t be someone you’re constantly in the car with, like your partner. Otherwise, your risk for accidents is much higher.”
As you plan for retirement, you should make sure you’re protected and prepared for a crisis. However, this doesn’t mean getting a DPOA should be limited to those nearing their golden years.

For example, if you get in a car accident and become paralyzed, you may not be able to make medical decisions for yourself.

“The most important part of choosing an agent is to have backups available. When your DPOA document is drafted, the backups won’t have power unless something happens to your primary agent. Your backup shouldn’t be someone you’re constantly in the car with, like your partner. Otherwise, your risk for accidents is much higher.”
Brett Halperin, Estate Planning and Elder law Attorney from Halperin Law Group

Having a DPOA would ensure a responsible agent is looking after your medical and financial decisions. If you don’t have a DPOA, your loved ones could have difficulty accessing your finances to pay for medical or vehicle damages in the case of a car accident.

Durable Power of Attorney vs Power of Attorney

A durable power of attorney and regular power of attorney are the same aside from one distinct detail. With a durable power of attorney, the agent can make decisions for the principal, even if they become incapacitated.

With a normal power of attorney, the agent cannot make any decisions if the principal becomes incapacitated. The power of attorney becomes void the second the principal can no longer make decisions on their own.

Types of Durable Powers of Attorney

There are three main types of DPOA —general, financial and medical. If you choose a general power of attorney, then your agent can make legal, medical and financial decisions. If you choose a financial or medical power of attorney, then your rights are more limited.

There are similarities between each DPOA type. All give the agent different levels of authority to act on your behalf. Each type of DPOA has the same rules when it comes to getting a DPOA and revoking your power of attorney: the principal must be coherent when signing the DPOA and all types of DPOA are void when the principal passes away.

Learning about the responsibilities that can come with each type of DPOA can help you decide who to appoint as your agent.

Financial Durable Power of Attorney

A financial DPOA is a limited power of attorney. The agent can only take charge of your finances and property. However, you can determine how much control the agent has. For example, you could specify in the contract that the agent is only in charge of paying your bills or you can give them free range. This type of DPOA does not have the right to make medical decisions.

Possible Responsibilities with a Financial DPOA
  • Pay bills
  • Make a deposit
  • Handle principal’s taxes
  • Access bank account
  • Collect insurance benefits
  • Sell principal’s car or home

Health Care Durable Power of Attorney

A health care DPOA, also known as a designation of health care surrogate, is a limited power of attorney. Your agent will oversee and determine your health care needs and treatments. You can limit this type of DPOA in your contract if you don’t want to give your agent free reign. This type of DPOA does not have the right to make financial decisions.

Possible Responsibilities with a Health Care DPOA
  • Decide on treatment options
  • Choose medication
  • Decide to opt in or out of surgery
  • Determine end-of-life care

Why You Need a Separate DPOA for Medical and Financial Care

Deciding someone’s medical care and finances can be overwhelming for some individuals. Remember, their own life won’t go on pause. They will overtake your life responsibilities on top of their own.

By having a separate DPOA, you can assign different agents to different aspects of your life. This will result in less stress and better decisions for your wellbeing. Having separate documents and responsibilities will also make it easier to digest information.

How a Durable Power of Attorney (DPOA) Works

The functionality of a DPOA is to provide for those unable to do so themselves. Many older adults get a DPOA as their health starts deteriorating. America has many legal protections in place, like elder laws and a DPOA, to ensure quality care and protection.

Pro Tip
You can only get a DPOA if the principal is of sound mind and understands the legal repercussions. If they are not, then you cannot get a DPOA. If they are lucid and agree to a DPOA, this is a viable option for you.

Once a DPOA is signed, it can be valid immediately or begin at a triggering event.

For example, let’s say you want a DPOA for your grandmother because she is starting to become forgetful. You could get a general DPOA that starts immediately, so you can overtake her health and financial responsibilities.

In another scenario, let’s say you want a DPOA as an able-bodied young adult with children. You may not want an agent to take over financial and health care decisions immediately. But in the case you become incapacitated, like go into a coma, your DPOA could be triggered.

There are several ways to terminate a DPOA. All DPOAs are immediately invalid once the principal passes away. The principal can also make a written notice to terminate the DPOA. Note that in some states, a notary is required along with two witnesses. You could also get a new DPOA that voids all responsibilities of the previous agent, giving new legal power to your new named agent.

How To Set Up a Durable Power of Attorney

Learning how to get a durable power of attorney for an elder parent can be stressful. Seven steps can help you set up a DPOA properly.

7 Steps to Set Up a DPOA
Decide what type of DPOA you want
Some are more flexible than others. How much control do you want to give? Deciding if you want a general, health care or financial DPOA can help you decide who to select as your agents.
Determine whether you want one or multiple agents
If you choose multiple agents, determine what they will oversee. For example, if you have a child who is a nurse, you may want them to be the agent for your health care DPOA. Similarly, if you have a child who is a banker, they would be the best-suited agent for your financial DPOA. Remember, even if you choose one agent, you should still add backups to your contract as a safeguard.
Make sure your agents are trustworthy and up to the task
Your agents are responsible for your finances and health, including your end-of-life care. Do not choose an untrustworthy individual as your agent, even if they are family. You can choose a professional to oversee your DPOA if you feel none of your family members are up to the task.
Determine the specific limits and rules within your DPOA
Do you want your agent to have free range or only be permitted to make decisions in specific instances? This is important to consider before signing a contract.
Get a DPOA form from a licensed attorney
Once you’re prepared, you can start filling out the information you’ve compiled from earlier steps. Getting a DPOA form from a licensed attorney guarantees you’re getting a proper form. Many online DPOA forms are too simple and don’t grant the powers needed.
Have an attorney review your DPOA
Have a professional look over your form to help guarantee everything is in order.
Sign the DPOA
In some states, the form must be signed in front of a notary public and witnesses. Confirm your state’s requirements before signing.

Conditions for Needing a Durable POA

There are no specific conditions required to need a DPOA — it is a legal precaution that can protect anyone at any age. Most decide to get a DPOA to protect themselves during emergencies.

“It’s imperative that everyone has a power of attorney. It’s more important than setting up a will or a trust.” Halperin said.

Life has unexpected injuries — having a safeguard can give you peace of mind. However, there are specific instances where you could greatly benefit from a DPOA.

Reasons to Consider a DPOA
  • If you suffer from memory impairments
  • If you have chronic Illnesses
  • If you partake in a dangerous hobby or sport

If you have a family history of dementia or other memory impairments, you may benefit from a DPOA. You can only get a DPOA when you are sound of mind.

If you suffer greatly from memory issues, you may not be permitted to sign a DPOA. You would need to file for guardianship instead if your memory has suffered too greatly.

“It’s imperative that everyone has a power of attorney. It’s more important than setting up a will or a trust.”
Brett Halperin, Estate Planning and Elder law Attorney from Halperin Law Group

Memory issues aren’t the only health issue that can make someone want a DPOA. If you have any chronic type of disease, then a DPOA can also help protect you.

On the other hand, if you partake in a dangerous sport or hobby and suffer from a catastrophic injury, then a DPOA can ensure that a trusted agent will care for your financial and health-related decisions.

How Many States Recognize the Durable Power of Attorney?

A power of attorney is accepted and recognized in all 50 states, but the rules and requirements differ depending on where you live. U.S. Legal, a BBB accredited business, has a list of state laws for different types of powers of attorney.

While all states recognize the DPOA, know that the legal requirements and validity for a DPOA can differ.

Legal Requirements to Get a Durable Power of Attorney in Different States
California
A DPOA must specifically authorize agents to make health care decisions. The principal must be competent when signing the DPOA. There also must be two witnesses or a notary public at signing, and they must also sign a statutory declaration.
Florida
The principal needs to be competent when signing the DPOA, with two adult witnesses present at time of signing.
Texas
The DPOA must be signed by a sound-of-mind principal with two witnesses present at signing. A statutory declaration form must be signed. There must also be a disclosure statement.
Tennessee
Must be signed by two witnesses along with a notary public. The DPOA must specifically authorize health care decisions.
Washington State
Does not require witnesses or notary public. DPOA must be in writing with a designated agent with intent of decisions authorized.

Durable Power of Attorney FAQs

What rights does a durable power of attorney have?
A durable power of attorney gives an agent the right to act on the principal’s behalf by making medical, financial and legal decisions, even if they become incapacitated.
What is the difference between a living will vs durable power of attorney (DPOA)?
A living will only become valid if the principal become incapacitated. The living will focuses on medical treatment, religious beliefs and resuscitation orders. A DPOA is valid once signed, and the principal must be of sound mind when signing. There are more flexible responsibilities with a DPOA, such as overlooking and managing finances, legal and medical decisions.
How long is a durable power of attorney good for?
The durable power of attorney is effective until either the term ends, the principal passes away or the principal revokes the power.
Last Modified: August 10, 2022

6 Cited Research Articles

  1. FreeWill Co. (2021, June 11). 5 Types of Power of Attorney, Explained. Retrieved from https://www.freewill.com/learn/5-types-of-power-of-attorney
  2. The Florida Bar. (2020, February). Consumer Pamphlet: Florida Power of Attorney. Retrieved from https://www.floridabar.org/public/consumer/pamphlet13/
  3. Macri Law Group. (2017, February 13). The Difference Between a Living Will and Power of Attorney. Retrieved from https://www.mchughandmacri.com/blog/2017/02/the-difference-between-a-living-will-and-power-of-attorney/
  4. Lins Law Group. (2016, November 30). How Do I Terminate a Durable Power of Attorney in Florida? Retrieved from https://www.linslawgroup.com/blog/2016/11/how-do-i-terminate-a-durable-power-of-attorney-in-florida/
  5. American Bar Association. (n.d.). Power of Attorney. Retrieved from https://www.americanbar.org/groups/real_property_trust_estate/resources/estate_planning/power_of_attorney/
  6. Find Law. (n.d.). State Durable Power of Attorney Laws. Retrieved from https://www.findlaw.com/state/health-care-laws/durable-power-of-attorney.html