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Below, you will find a detailed description of the main sections of our durable power of attorney in the order that they appear in the document. Note that some of these sections may be omitted from your document depending on how you answer the relevant questions.

Recording Language

The top-left block of text appearing immediately before the document title informs the official handler of the recording process who requested this document to be placed in public record, how the document should be treated after it is recorded, and who created this document.

It is not necessary to record a power of attorney to make it legally binding; however, if the agent has the power to handle real estate transactions and it is likely they will use this power on the principal's behalf, it may be useful to record the durable power of attorney.

Important Notice, Important Information, or Caution to the Principal

This section introduces what the principal may and may not accomplish with this durable power of attorney.

The principal may authorize another person or people, called “agent(s),” to make decisions about and manage their finances, real estate, personal properties, legal affairs, and business affairs. The principal may not authorize the agent(s) to make healthcare decisions on their behalf with this durable power of attorney (a separate healthcare power of attorney will be required).

Giving another person the ability to act on behalf of someone is an important decision. This section is a reminder that the principal should be comfortable with the appointed agent(s) and understand the terms in the document before signing it.

Appointing an Agent

This section is where the principal appoints an agent, also known as an “attorney-in-fact.” The agent is clearly identified by his or her name, address, and phone number to avoid any confusion over identity.

In considering who to appoint as the agent, address the following questions:

  • Can this person be trusted with the principal's financial and legal affairs?
  • Is this person financially and legally responsible with their own affairs?
  • Will this person take their responsibility as the agent seriously and act in the principal's best interest?
  • Does this person understand, or have the ability to learn and understand, the principal's financial and legal affairs?
  • Does this person work well, or have the ability to work well, with attorneys, accountants, business associates, and other specialists and professionals if necessary?
  • Will this person agree to be the agent given the duties and responsibilities?

Effectiveness

This section establishes how long the agent will represent the principal and their interests.

The principal may authorize the agent to start acting on their behalf immediately, when the durable power of attorney is fully executed, or at a later date, if and when they become incapacitated. “Incapacitated” means the principal is no longer able to understand and evaluate information in order to make competent decisions regarding financial, business, or legal affairs. This can be due to physical and mental impairment.

Once the agent’s authority to represent the principal begins, they may represent them until a predetermined specified date or continue without an end date, even through any period of incapacitation, until the principal decides to revoke or change the agent’s authority.

If you choose a specific date, you can enter the exact date of when you want the agent’s authority to expire. For example, this may be two years from the time you sign your durable power of attorney or when you anticipate to return from service or deployment overseas. Specifying a predetermined end date for the agent’s representation may be suitable if the principal anticipates that their life circumstances or the agent’s life circumstances may change drastically in the future. It provides the principal with an expected timeline to reevaluate and update their financial affairs if necessary.

If you choose not to set an end date, the agent’s authority will not end until the principal decides to change it. This may be suitable if the principal wants the agent to easily manage their affairs indefinitely, even through mental or physical incapacitation.

Agent as Fiduciary

The principal must understand that this durable power of attorney places them and the agent in a fiduciary relationship. The meaning of “fiduciary” is an agent’s obligation to act only in the principal’s best interest. This section once again reiterates that the relationship between the principal and the agent is one of the highest trust and confidence. If and when the agent makes a decision for the principal, it must be for the principal's benefit.

Successor Agent and Second Successor Agent

It is important to have multiple potential agents as backup to represent the principal's financial and legal interests in case the primary agent is unable or unwilling to act on the principal's behalf when needed. This may occur for various reasons. A potential agent could be unable to represent the principal because they themselves become incapacitated due to health reasons; or, perhaps a potential agent may be unwilling to represent the principal because they feel uncomfortable with their inexperience to deal with the principal's sophisticated financial or legal situation.

Whatever the circumstances may be, the sections titled “Successor Agent” and “Second Successor Agent” allow you to establish a contingency plan for alternative agents who may also represent the principal if potential agents are unable or unwilling to do so. If you choose to add these successor agents to the durable power of attorney, these successor agents will be clearly identified within the appropriately titled sections by his or her name, address, and phone number to avoid any confusion over identity.

General Authority to Act

If the principal grants the agent total authority to act on their behalf, then all the authorities below will be displayed within this section. On the other hand, if the principal does not grant the agent total authority, then you will need to indicate which authorities the agent is authorized to act for the principal. When the document is completed, the principal must initial each of the authorities they have granted to the agent.

  • "Real property" grants the agent the authority to buy, sell, and manage the principal's real estate. Real estate may be land, houses, condos, co-ops, or partial interests in any of these properties.
  • "Tangible personal property" grants the agent the authority to buy, sell, and manage the principal's physically movable properties that are not real estate. This may include properties such as jewelry, vehicles, furniture, art, and heirlooms.
  • "Stocks and bonds" grants the agent the authority to buy, sell, and manage stocks and bonds on the principal's behalf.
  • "Commodities and options" grants the agent the authority to buy, sell, and manage commodities and options on the principal's behalf.
  • "Banks and financial institutions" grants the agent the authority to deal with financial institutions on the principal's behalf. This may include opening and closing bank accounts; depositing and withdrawing funds; receiving and monitoring account statements; taking out loans to support other financial, business, or legal interests; and managing debit and credit cards.
  • "Operation of entity or business" grants the agent the authority to buy, sell, manage, or terminate the principal's interest in businesses they own. This may include making employee hire or termination decisions, entering into or terminating contracts, participating in related litigation, investing capital, preparing business statements and forms, and preparing taxes.
  • "Insurance and annuities" grants the agent the authority to manage any insurance plans or annuities that were either created by the principal, irrespective of who it benefits, or created by a third party for the principal's benefit. This may include contributing to, modifying, or terminating a contract of insurance or annuity.
  • "Estates, trusts, and other beneficial interests" grants the agent the authority to exercise the principal's rights under any estates, trusts, or beneficial interests. A “beneficial interest” is the right to profit, distribution, property, title, or other benefits on assets held within an estate, trust, or contract (i.e. funds from trusts, wills, guardianships, escrow accounts, etc.).
  • "Claims and litigation" grants the agent the authority to act on the principal's behalf for any claims or litigation. This may include settling claims, submitting claims to arbitration, and paying or receiving a judgment.
  • "Personal and family maintenance" grants the agent the authority to perform acts to maintain the principal and the principal's family’s living standard. This may include paying for the principal and the principal's family’s support, health care, and education, and ensuring a place to live.
  • "Benefits from governmental programs and civil or military service" grants the agent the authority to exercise and manage any benefits the principal may be entitled to through governmental programs or military service. This could include managing the principal's Veterans Affairs home loan, government-sponsored tax-deferred savings and investment accounts (also known as Thrift Savings Plan), and pension plans.
  • "Retirement plans" grants the agent the authority to establish, contribute to, and modify the principal's participation in and rights under any retirement plans, accounts, or portfolios.
  • "Taxes" grants the agent the authority to prepare, pay, and exercise the principal's rights concerning federal, state, and local taxes. This may include preparing annual taxes, receiving any refunds, paying any fines and penalties assessed, and challenging any tax claims or decisions.
  • "Gifts" grants the agent the authority to make gifts to third parties as the principal desires (called “beneficiaries”) on the principal's behalf. This may include gifts in accordance with wishes to trusts, minor children or relatives, and tuition savings accounts. 

Specific Acts Authorized

This section lists more specialized and less common authorities that may or may not be applicable to the principal depending on their financial, business, and legal affairs. The principal should read through each authority carefully and must initial each authority they wish to grant the agent.

The following are some terms that may be helpful to know in reading this section. These terms are not exhaustive and you should research the terms more if you have any lingering questions.

  • "Right of survivorship" is a property right if the principal owns a property in joint tenancy. The right of survivorship determines what happens to the principal's part of the joint tenancy when they pass away.
  • "Beneficiaries" are generally any person or entity who receives assets, profits, gifts, or any benefit. This may be from a person (third party), an estate, a trust, or an insurance policy.
  • "Delegation" authorizes the agent to pass on all or part of their powers and responsibilities to represent the principal to a third party.
  • "Waive principal’s rights" allows the agent to relinquish any claim the principal may have regarding a retirement plan or an annuity. The purpose of the principal waiving their rights can vary, but an example would be to pass on the entire benefit to a spouse or child.
  • "Exercise fiduciary powers" gives the agent the ability to exercise fiduciary powers the principal may have. This could range from acting as a trustee to voting on a board of directors. Local state law may stipulate what fiduciary powers the agent can or cannot perform.
  • "Refuse property interests" allows the agent to relinquish the principal's interest in any property.
  • "Inter vivos trust" is a trust created by the principal during their lifetime. Usually the trust's funds, assets, and profits are distributed to the trust beneficiaries when the principal passes away.
  • "Pets" may be specifically addressed and cared for within the durable power of attorney. Initial next to this section to give the agent the ability to make reasonable and proper arrangements for the principal's pets in their absence. This may include making boarding arrangements, paying veterinary bills, and maintaining the pets’ standard of living.
  • "Funeral and burial arrangements" grants the agent the authority to make funeral, memorial, burial, or cremation arrangements after the principal's death. This may include purchasing a burial plot, identifying a location to inter ashes, and following instructions from the advance healthcare directive and the healthcare agent or proxy, if one exists.
  • "After-acquired property" is the principal's property that is not mentioned specifically in their will because it was acquired after the will was made.
  • "Gifts to agent" grants the agent the authority to make limited monetary or property gifts from the principal's assets to themselves. The limited gift must not exceed the annual federal gift tax exclusion amount, which can be found with the Internal Revenue Service (IRS). The circumstances where these gifts may be made include if the principal wants to maintain the agent’s standard of living, health needs, or for the agent’s education. It does not grant the agent unfettered authority to use the principal's assets for their own interest. It does allow the agent to give gifts to themselves under limited circumstances and according to the principal's expressed interest.
  • "Nominating a conservator" grants the agent the authority to name a conservator for the principal if the principal does not name one themselves and protective proceedings are initiated by the court when the principal becomes incapacitated. The agent may nominate themselves to be the principal's conservator.
  • "Other matters, alter ego, incidental powers" grants the agent all the powers and rights to act on the principal's behalf as if they are the principal's alter ego. This includes all matters that are not enumerated within this durable power of attorney as long as those powers are not prohibited in other provisions of this durable power of attorney.
  • "Restrictions on property management powers" restricts the agent’s power to use the principal's assets to satisfy their personal obligations alone.
  • "Beneficial Use" – Option 1: The principal may initial next to the first beneficial option if the non-biologically-related agent IS ALLOWED to use the principal's property for the agent's own purposes, not for the principal's benefit.
  • "Beneficial Use" – Option 2: The principal may initial next to the second beneficial option if the non-biologically-related agent IS NOT ALLOWED to use the principal's property for the agent's own purposes unless the principal specifically includes such authorization in the Special Instructions section.

Special Instructions

Depending on your answer, this section specifies any special additional instructions, terms, provisions, or restrictions the principal will place on the agent’s authority.

Nomination of a Guardian or Conservator

Depending on your answer, this section identifies who the principal would prefer the courts to appoint as their guardian or conservator for health care and other purposes if protective proceedings are initiated when they become incapacitated. If the principal has executed a separate healthcare power of attorney, living will, advance directive, or other similar healthcare document that appoints a healthcare agent or proxy, this section may not apply.

Amplifying Powers

The agent may be entitled to certain rights and powers due to the amount of time, work, and responsibility necessary to perform their duties as the agent. For example, the agent may be compensated weekly depending on the difficulty and extensiveness of their services as the agent. The agent will be reimbursed for reasonable and documented costs and expenses.

The agent will need to make representations on the principal's behalf as part of their duties. The principal agrees here that third parties, such as banks or business associates, can rely on these representations.

The agent may not be held liable for any wrongdoing so long as they perform their duties according to the principal's wishes and authorizations within the durable power of attorney in good faith. Unforeseen complexities in making financial, business, or legal decisions may scare a good agent away from serving. This language ensures them that they will not be exposed to personal liability when representing the principal's interests for the principal's benefit.

Revocation and Amendment

In executing this durable power of attorney, the principal revokes any previous durable power of attorney documents they have made. The new durable power of attorney becomes the current and effective durable power of attorney for the principal, unless and until it is revoked or another durable power of attorney is executed that includes a revocation clause.

If you wish to amend, change, or update only a portion of the durable power of attorney, this amendment must be attached to the original durable power of attorney that you are making the changes from. Additionally, if the original durable power of attorney is recorded, the amendment must be recorded as well to be effective and recognized as part of the originally recorded documents.

General Provisions

The agent must sign for the principal in the following manner: [Principal] by [Agent], his or her Agent. For example, if the principal is “John Smith” and the agent is “Jane Smith,” Jane will sign for John as his agent as “John Smith by Jane Smith, as his or her Agent.”

This durable power of attorney will remain effective if any section becomes invalid for any reason such as changes in law. The invalid section will simply be disregarded as if it does not exist.

Any person can rely on this executed durable power of attorney, in original or copied form, unless they know for a fact that this durable power of attorney has been superseded, changed, or is otherwise invalid. 

Principal's Signature

When the principal has carefully read all of the terms of the durable power of attorney, they must sign in the presence of an appropriate disinterested witness or witnesses according to their state requirement as provided in the “Instructions for Your Durable Power of Attorney.”

Notice to Person Accepting the Appointment as Attorney-in-Fact

This notice ensures that the agent understands their duties and responsibilities under this durable power of attorney. Most importantly, the agent must act in the principal's benefit and cannot commingle the principal's assets and properties with their personal assets and properties.

The agent must carefully read this notice and all terms of the durable power of attorney before signing and accepting the assignment to become the agent. The agent should seek legal advice if they have any questions.

Notary Acknowledgment

For certain states, a notary section is attached. Although not required, it is recommended that a notary witnesses the signing, which will help prove the authenticity of the durable power of attorney should it ever be challenged in court.

Statement of Witness

The principal and the witness or witnesses all must sign in the presence of each other (everyone should see each other sign). The acknowledgment affirms the principal's identity, that they signed the durable power of attorney in the witness’ presence, that they are of sound mind and memory, that the signature was not procured fraudulently, and that the witness or witnesses are not the agents (i.e. are disinterested parties without any conflict of interests).

Frequently Asked Questions

What is a power of attorney?

A power of attorney is a document used to give someone legal authority to act on your behalf. The person granting authority is known as a principal, while the person exercising the authority is known as an agent or attorney-in-fact. The duration of this power and what matters it covers is completely at the discretion of the principal.

When does the power under my durable power of attorney begin and when does it end?

The authority to act under a durable power of attorney is effective the moment the form is legally executed and in force. Alternatively, the form can be a “springing” power of attorney, meaning that your named attorney-in-fact does not have authority to act for you until a certain date or until you are incapacitated or incompetent.

Your durable power of attorney will remain in effect until the date of termination specified in the document or until you choose to revoke the document. If you do not specify an end date for your durable power of attorney and have not revoked it in writing, the authority granted to your agent ends the moment of your death. At that point, the named personal representative or executor in your will takes over the management of your affairs.

Will my durable power of attorney document be accepted and effective for all of my financial providers?

Some financial services providers and other organizations may require you and your named agent to sign a separate or an additional company-specific power of attorney authorization. After you complete your durable power of attorney, you should check with each of your providers to determine whether any additional information or authorization will be required in order for your named agent to act for you.

Power of attorney state witnessing requirements

Some states only require the signatures of two witnesses OR a notary. However, it is best (and we highly recommend) to have two disinterested witnesses AND a notary sign your power of attorney. Refer to your state's specific witnessing requirements below.

Alabama – at least two witnesses must sign

Alaska – at least two witnesses or a notary must sign

Arizona – at least two witnesses or a notary must sign

Arkansas – at least two witnesses or a notary must sign

California – at least two witnesses or a notary must sign

Colorado – at least two witnesses must sign

Connecticut – at least two witnesses must sign

Delaware – at least two witnesses must sign

District of Columbia – at least two witnesses must sign

Florida – two witnesses AND a notary must sign

Georgia – at least two witnesses must sign

Hawaii – at least two witnesses or a notary must sign

Idaho – at least two witnesses or a notary must sign

Illinois – at least two witnesses or a notary must sign

Indiana – at least two witnesses must sign

Iowa – at least two witnesses or a notary must sign

Kansas – at least two witnesses or a notary must sign

Kentucky – at least two witnesses or a notary must sign

Louisiana – at least two witnesses must sign

Maine – at least two witnesses must sign

Maryland – at least two witnesses must sign

Massachusetts – at least two witnesses must sign

Michigan – at least two witnesses must sign

Minnesota – at least two witnesses or a notary must sign

Mississippi – at least two witnesses or a notary must sign

Missouri – at least two witnesses must sign

Montana – at least two witnesses must sign

Nebraska – at least two witnesses or a notary must sign

Nevada – at least two witnesses must sign

New Hampshire – at least two witnesses or a notary must sign

New Jersey – at least two witnesses or a notary must sign

New Mexico – at least a notary must sign

New York – at least two witnesses must sign

North Carolina – two witnesses AND a notary must sign

North Dakota – at least two witnesses or a notary must sign

Ohio – at least two witnesses or a notary must sign

Oklahoma – at least two witnesses must sign

Oregon – at least two witnesses must sign

Pennsylvania – a notary and two witnesses must sign

Rhode Island – at least two witnesses or a notary must sign

South Carolina – at least two witnesses must sign

South Dakota – at least two witnesses must sign

Tennessee – at least two witnesses or a notary must sign

Texas – at least two witnesses or a notary must sign

Utah – at least one witness must sign

Vermont – at least two witnesses must sign

Virginia – at least two witnesses must sign

Washington – at least two witnesses must sign

West Virginia – at least two witnesses must sign

Wisconsin – at least two witnesses must sign

Wyoming – at least two witnesses or a notary must sign

Can I fire my agent?

You can amend or revoke a durable power of attorney in any way you see fit, including removing a poorly performing agent. It is usually best practice to revoke the durable power of attorney and create a new one appointing another agent. In any case, you should serve the agent with a notice of revocation and inform all organizations that have relied upon your durable power of attorney of the changes you have made. If you are unhappy with how your agent is handling your affairs, then it is better to withdraw your authorization as soon as possible.

Can my agent be held liable for his or her actions?

As long as your agent acts prudently, with care, and in your best interests, your agent cannot be held personally liable for any decisions made. As your agent, he or she legally owes you a duty of care. However, if your agent acts recklessly, negligently, or illegally, then he or she may be liable for such actions.

Do I still have control over my affairs?

Yes; as long as you are mentally capable, you have the ultimate say on how your affairs are handled. It is your decision as to when the durable power of attorney comes into force, and it is your right to change or revoke it as you see fit. Your agent should follow your wishes and instructions, and it is important that you are not forced or unduly influenced into making decisions. It is important that you are happy and feel comfortable with how your affairs are being handled and how decisions are being made.

Will my durable power of attorney be valid in another state?

In most cases, state laws usually have provisions that recognize a valid durable power of attorney that was created in another state. In rare occasions there may be some powers that do not transfer or require additional formalities in order to be valid in another state. If you are moving, it is worthwhile inquiring about your durable power of attorney or drawing up a new durable power of attorney for your new state.

Do I need to register my durable power of attorney?

There are no requirements to register your durable power of attorney. In fact, most states do not have a central registry for powers of attorney. The exception to this is if your agent will be dealing with your real estate. In some states, in order for your agent to buy, sell, or mortgage property on your behalf, the durable power of attorney must be recorded with the County Clerk’s Office.

Can I change or revoke my durable power of attorney?

You are free to revoke or amend your durable power of attorney at any time as long as you are mentally capable of making decisions for yourself. Do not forget that a durable power of attorney continues even when you become incapacitated. As your agent acts on your behalf, it is completely up to you when, how, and for how long your agent’s powers will continue to exist. In order to change a durable power of attorney, the easiest option is usually to revoke it completely and create a new one. Inform your agent and any organizations when you have amended or revoked your durable power of attorney.

What are the benefits of creating a durable power of attorney?

A durable power of attorney is an extremely powerful financial tool that can eliminate the need to have to go to court to establish a conservatorship over your affairs if you become incapacitated or incompetent.

If you are alive but are not able to manage your own financial affairs, having a valid durable power of attorney in place will give your named agent the authority he or she needs to pay your bills, transact business on your behalf, and get information from your financial service providers.

A durable power of attorney is not limited to situations where you are incapacitated, which is what makes it such a powerful document. People often choose to give their agent power over their personal and business affairs, and the agent’s power lasts either indefinitely or for a specific period of time. This is fairly common for people serving overseas in the military or people traveling for an extended period of time who need someone to manage things at home until they return.

Who can create a durable power of attorney?

Anyone over the age of 18, who has the mental capacity to understand what they are signing, can create a durable power of attorney for financial transactions and other matters.

I am married. Do I need a durable power of attorney or can my spouse automatically handle my affairs?

There is a common misperception that spouses automatically have the authority to handle their spouse’s financial affairs and access financial accounts that are in the other spouse’s name.

In reality, if your spouse owns an asset or maintains an account in his or her name alone, then you do not have any automatic rights to access or transact business with that asset or in that account. A durable power of attorney gives you that authority, making the process of handling everyday financial tasks simpler and easier.

Are there risks associated with giving your agent authority under a durable power of attorney?

As a durable power of attorney gives your agent the authority to access your financial accounts, transact business on your behalf, and obtain and share information about your finances, it is important to have a level of confidence in the person or organization you name as your agent.

However, when an agent abuses the authority granted under a power of attorney by acting carelessly, recklessly, negligently, or illegally, they are liable for their actions and can be prosecuted under the laws of your state. A properly drafted power of attorney will narrowly define the agent’s powers to those specifically needed and will set forth limitations on the agent’s authority.

Can I name more than one person as an attorney-in-fact for a durable power of attorney?

In most cases, you can name more than one person to act as your attorney-in-fact (agent) under a durable power of attorney.

However, doing so can create inefficiencies or confusion. If you name more than one person acting at the same time, you will need to identify whether they must act together (with multiple signatures required on documents or checks) or whether they are empowered to act independently (only one signature required).

You can also name someone as a successor attorney-in-fact to serve as a backup agent if the person(s) you named first cannot act.

Does my named attorney-in-fact have to be an individual?

Your named attorney-in-fact (agent) can be either a person you know or a professional fiduciary. Many banks, credit unions, and trust companies offer to serve as agents under durable power of attorney documents in exchange for a fee. You may also find smaller, local companies whose business it is to provide professional fiduciary services.

If you are considering choosing a business that offers professional fiduciary services, do some investigative research first. Interview the company to learn about their policies and procedures, inquire about fees, and ask questions before making a decision to name a business in your durable power of attorney form.

Naming a professional fiduciary can ensure continuity of service and can provide a level of professionalism and legal responsibility that some people find more comfortable than naming a family member or friend as their agent.

Do I need a durable power of attorney if I have already created a last will and testament?

Yes. Your last will and testament and your durable power of attorney actually serve different roles in your estate plan. The personal representative or executor named in your will has authority to handle the administration and distribution of your estate after your death. However, he or she does not have any authority to act on your behalf during your lifetime.

That is where a durable power of attorney can be beneficial. None of us know what might happen tomorrow. When you create and execute a durable power of attorney, you are taking an important step toward ensuring that your financial affairs will be managed seamlessly during your lifetime, even if you become incapacitated or are deemed incompetent to handle your affairs.

What powers will my agent have under a durable power of attorney?

In most cases, durable power of attorney forms are used to authorize your named agent to manage almost all of your financial and personal affairs.

Among other powers, durable powers of attorney may authorize the named agent to handle the following matters:

  • Real property (real estate)
  • Banking transactions
  • Bond, shares, and commodities transactions
  • Business operations and transactions
  • Insurance transactions
  • Tangible personal property transactions
  • Beneficiary transactions
  • Gift transactions
  • Fiduciary powers
  • Family maintenance
  • Claims and litigation
  • Benefits from military service
  • Reports, records, and statements

Your durable power of attorney may also authorize your named attorney-in-fact (agent) to make gifts to his or herself from your assets, to handle final arrangements on your behalf, to act in your stead for your pets, and more.

One notable exception to the otherwise broad nature of a durable power of attorney is the authority to handle healthcare matters for you. In most states, you need to create a separate advance healthcare directive and healthcare power of attorney (also known as a living will and healthcare proxy, respectively) in order to authorize someone to speak for you and carry out your healthcare wishes in the event of your incapacity.

What are my agent’s responsibilities under a durable power of attorney?

Your named attorney-in-fact (agent) is responsible for carrying out your wishes and handling your affairs on your behalf to the extent authorized in the legal document itself.

While serving, your attorney-in-fact is acting in a fiduciary capacity for you. This means that he or she must act responsibly and in a manner that is in your best interests.

Your agent should maintain a record of transactions handled as your attorney-in-fact. You have the right to ask for statements of the agent's transactions and actions on your behalf, which your agent must provide.

Your agent must also honor your wishes. If you revoke your durable power of attorney, he or she must immediately stop accessing your information and transacting business on your behalf.

If I named my spouse as my agent but we have since gotten divorced, do I need to revoke my durable power of attorney?

In most states, the dissolution of a marriage automatically revokes a spouse’s authority to act as an attorney-in-fact (agent) for his or her spouse under a previously granted durable power of attorney document.

As durable power of attorney documents are governed by the laws of the state where you live, you should confirm how divorce affects the fiduciary authority granted under a power of attorney in your state.

Can I name my minor child as my agent under a durable power of attorney?

No. Your named attorney-in-fact (agent) under a power of attorney must be an individual who is at least 18 years of age or older or a business (professional fiduciary).

If your child is at least 18 years old and is responsible, you may consider naming him or her in this role. However, the powers and responsibilities under a durable power of attorney document can be overwhelming for people of any age; many young adults simply are not equipped to handle the required level of responsibility.

Will my agent need the original signed form to act or can they use a photocopy?

In many cases, your agent will be able to act on your behalf when they present a photocopy of your durable power of attorney document. However, certain types of transactions, such as those involving real estate transactions, will require the original signed document. Some financial institutions also require the original document before they will transact with your named attorney-in-fact.

As a result, some people choose to execute more than one original durable power of attorney. Regardless of how many original copies you sign, be sure to keep them in a safe place, and be sure your named attorney-in-fact knows where those documents are maintained.

Should I give copies of my durable power of attorney to anyone?

As a best practice, you may wish to provide copies of your signed and executed durable power of attorney form to your bank, credit union, investment adviser, brokerage house, life insurance agent, and to any other organization where you maintain financial accounts or assets.

While this step is optional until your agent actually needs to act on your behalf, providing copies to your providers ahead of time can ease your agent’s burden if and when they need to begin using the power of attorney form for you. Financial organizations will often require a period of time—anywhere from a day to a week or more—for their legal department to review their customers’ durable powers of attorney before they will accept the forms.

Often, an unforeseen accident or illness precedes the need to use a durable power of attorney. If you have already given copies of the document to your financial services providers, your agent will not need to worry about taking that step and should have the authority they need to act right away without an inconvenient and frustrating waiting period.

Will my agent need the original signed form to act or can they use a photocopy?

In many cases, your agent will be able to act on your behalf when they present a photocopy of your durable power of attorney document. However, certain types of transactions, such as those involving real estate transactions, will require the original signed document. Some financial institutions also require the original document before they will transact with your named attorney-in-fact.

As a result, some people choose to execute more than one original durable power of attorney. Regardless of how many original copies you sign, be sure to keep them in a safe place, and be sure your named attorney-in-fact knows where those documents are maintained.

Checklist Icon

Checklist

Step 1: Communicate Your Wishes

It is recommended that you discuss your durable power of attorney with your agent and any others named in the document. This could include one or more named guardians or physicians. Doing so will help ensure that your wishes are clearly communicated and understood at the time of signing.

Step 2: Review and Sign

Next, review your document and make any final changes or clarifications. Follow your state's witnessing requirements when signing, which are included with the instructions attached to the end of the downloaded document. Most states require either a notary or two disinterested persons to witness the principal sign.

Step 3: Distribute Copies

All parties named in the document should receive a copy of the power of attorney once it is fully executed.

Step 4: Periodically Review and Update

The principal will need to review the document and make any needed updates at least every couple of years. Life events often cause the principal's needs and wishes to change over time. Our durable power of attorney will automatically revoke your original power of attorney while allowing you to update your wishes.

Step 5: Revoke Your Agent's Authority (Optional)

In the event that you wish to terminate your agent's authority to act on your behalf, you need to complete a revocation of power of attorney form. However, if you simply wish to change or add agents, then you should create a new power of attorney.