Durable Power of Attorney

Your Durable Power of Attorney is an important document because it is the only way to direct how your affairs must be handled if you become incapacitated.

Unless you use the term durable or enduring or lasting or continuing, your document will expire when you become incapacitated.

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It will in any event expire upon your death and then the person whom you appointed as executor in your Last Will and Testament will be making decisions and handle your estate.

The terms used vary according to country or jurisdiction: Durable (USA); Continuing (Canada, Scotland); Lasting (England, Wales); Enduring (Australia, South Africa) etc.

You can also distinguish between a document that empowers your Agent to handle your property and financial affairs and a separate document that handles your health and welfare.

Having made your Durable POA does not mean you do no longer have a say in how your matters must be handled. Your Agent/Attorney must still abide by your decisions, regardless whether he/she considers them wise. You can also list restrictions on the document which must be followed, even when you've become incapacitated and can no longer speak for yourself.

Becoming incapacitated can be the result of an accident, debilitating stroke, dementia etc.

The choice of your Agent is most important - make sure you name someone you trust implicitly. You should also consider appointing more than one person and also naming replacement/substitute attorneys should your initial choice(s) not be able/willing to act on your behalf when the time comes.

Before completing your POA, it is important to review the following information and guidelines:

  • Choosing your Agents/Attorneys and directing how decisions must be made;
  • The legal requirements for your document;
  • The various limited Power of Attorney documents that you can use;
  • Lasting Power of Attorney - There are some very good guidelines and examples which can benefit anyone (wherever in the world) even though the page is specifically aimed at our site visitors from England and Wales.

Links to the above pages can be found on our main POA page.

And follow this link for your free Durable Power of Attorney sample document.

Some explanatory notes about our free legal form:

When compiling a general durable or enduring power of attorney, you can list a myriad of provisions for which you grant the authority to act. A general POA will typically state: "including but not limited to the following:"

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* Property transactions
* Banking transactions
* Claims, litigation and debt
* Real estate transactions
* Investments
* Waiving of rights
* Business transactions, partnerships, meetings and the right to vote
* Enter into agreements
* Stocks, bonds, commodity and share transactions
* Insurance and retirement transactions
* Tax and retirement matters

However, in our free legal template we do not list all the powers granted such as the above, but rather make provision for specific limitations or restrictions that you may wish to add, i.e. that you do NOT want your Agent to do.

For example, you may state that you do not ever want a certain property to be sold (because you've bequeathed it in your Will) or make a personal loan to family members etc.

Where we do list specific provisions, it is because they are not automatically granted in some states or countries. (Example Gifts as per paragraph 3 in the free form). It remains your choice whether you want to include them or not in your document.

If you appoint a professional such as an attorney or accountant as your Agent, they will most probably be compensated. Paragraph 7 makes provision for payment to your agent. If you appoint your spouse or anyone who is willing to act without payment, simply delete that provision.

The same applies to records of accounting as described in paragraph 6 which you can delete (if you appoint your spouse, for example) or specify different periods of accounting required.

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