- A durable power of attorney is established in the same manner as a standard (or nondurable) version. However, when a standard power of attorney is granted by one individual to another (by the grantor to the attorney in fact), the power of attorney becomes ineffective if the grantor becomes incapacitated in any manner whatsoever. For example, if the grantor becomes incapacitated due to a physical injury, disease or mental illness, the power of attorney ceases. A durable power of attorney differs from the standard version in that it is designed to continue even if the grantor becomes incapacitated.
- A common reason for granting a durable power of attorney is to appoint or designate an attorney in fact to assist the grantor with his or her legal issues or financial matters. Such a durable power of attorney can be broad--giving authority to deal with all legal financial matters--or limited--giving power to deal with a specific legal or financial issue.
- A very common use of the durable power of attorney is for health care. Through this type of durable power of attorney, an attorney in fact is appointed to make health care decisions for the grantor should he or she be unable to do so for his or her self. There are three basic, essential types of decisions that an attorney in fact can make: power to consent to a medical procedure, power to refuse consent to a medical procedure and power to withdraw consent that previously was extended.
- The requirements to create a durable power of attorney include the creation of a written instrument. The grant of authority must be in writing. The instrument specifically must state that it is a durable power of attorney or it will be construed to be a standard power of attorney that will not survive the incapacity of the grantor. The durable power of attorney must set forth whether it is for a general purpose, a specific purpose or for health care. Finally, the grantor must duly execute the power of attorney in front of witnesses and a notary (as the law in a particular jurisdiction mandates).
- A person intending to execute a power of attorney needs to be clear on the fact that a significant grant of authority is being extended to another individual. Needless to say, that individual--the attorney in fact--must be trustworthy and someone in whom the grantor has confidence. Moreover, granting a power of attorney does not mean that the grantor (when and as possible) can neglect paying attention to his or her affairs and what is being done on his or her behalf.
