What Is A Durable Power Of Attorney?

A durable power of attorney is a document in which the principal names an agent is called the attorney in fact. And the attorney-in-fact has a fiduciary duty to the principal and can only act for their benefit.

The power of attorney can name a number of powers that the attorney-in-fact can do for the principal. Oftentimes, these documents are set up for real estate. They are a good idea to have in general and we always do them as part of a comprehensive estate even if you have a trust because some assets are not subject to the trust. For example, you cannot transfer a retirement account to the trust.

So, if you have a retirement account and you become incapacitated, you need your attorney-in-fact to access the retirement account when the time comes for you to receive distribution.

Understanding How Long a Durable Power of Attorney is Active

A durable power of attorney generally means that it’s active now and it remains active through your incapacity. That is different than what is called a springing power of attorney. A springing power of attorney only becomes active when you become incapacitated. It springs into action. A durable power of attorney continues through incapacity. 

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