A durable power of attorney is a legal document or provision whereby one person may assign someone else to act in his place in matters of law or business. The person who authorizes the other to act on his behalf is known as the principal, while the other is called the agent. A durable power of attorney is so called because the agent can act on behalf of the principal, even if the principal becomes incapacitated, or otherwise unable to administer his own affairs. For a conferral of power of attorney to be considered durable, it must be explicitly stated that it is still valid, even if the principal becomes disabled or incapacitated.
In some instances, a power of attorney is legally null and void if the principal becomes disabled. While this can potentially save the principal from any unscrupulous acts by the agent, it can pose problems as well. In most cases, it is precisely when someone becomes incapacitated that a power of attorney is most needed, so that the person's finances can continue to be cared for and administered, among other reasons. The durable power of attorney was created to solve this dilemma.
There are some jurisdictions in which a durable power of attorney is called a health care power of attorney. This is because it often includes the authority to make important health care decisions, such as when to discontinue life support when the principal is terminally ill in a hospital. This leads to a possible problem, namely that it may be the case that a principal does not wish to grant such sweeping authority to an agent. Fortunately, a durable power of attorney allows a principal to delineate exactly which decisions the agent is empowered to make on his behalf, and which ones he cannot make. It is also possible to construct a durable power of attorney in such a way so that it will begin to take effect only in the event that the principal becomes disabled, to ensure that it will take effect when needed, but not before.
To guard against any wrongdoing or any false assumptions about the wishes of the principal, it helps if the agent is someone who the principal trusts implicitly. This may be a husband or wife, one of the principal's adult children, or perhaps a very close friend who the principal feels is above suspicion. In any case, a durable power of attorney lapses permanently upon the death of the principal.
