Durable and Non-Durable Power of Attorney

There are many reasons why a person would choose todelegate certain obligations to a representative giving that person powers to conduct activities on his/her behalf in his/her absence. Perhaps that person fear of being incapacitated or perhaps the person is out of the country and need someone to take care of his/her personal affairs.

The power of attorney is a legal document that gives an agent authority to take charge of specific actions on behalf of the principal. The activities carried out by the agent can vary in scope and they can either be specified or general. The agent who is granted such power can make decisions in relation to legal matters which require the principal’s attention, address such matters with or without the direction from the principal depending on the power vested in him/her.

Financial decisions can also be made by the agent on behalf of the principal. Actions like payments can be administered by the agent having obtained a directory from the principal or even when the principal is incapacitated. The agent can also be allowed to make decisions in relation to the principal’s health.

Since the agent acts on behalf and in representation to the principal, he is vested with the power of attorney which is either durable or non-durable. The durability of this power is based on the scope which the agent grants to makedecisions on behalf of the principal.

A durable power of attorney is usually long lasting since the agent is given the mandate by the principal to make decisions regarding some aspects and the agent continues acting on behalf of the principal even after the principal is incapacitated.

Usually, the agent can be appointed to help the principal in performing certain obligations when the principal is still capable of making such decisions and once the principal is incapacitated by sickness to an extent that they can’t make decisions as to financial, legal and even health affairs.The agent assumes full responsibility and will be consulted to make decisions that could have otherwise required the principal’s attention.

In certain cases, the agent can be given unlimited autonomy of decision making and he/her can make decisions with or without consultation of the principal regardless of his/her competence to make decisions and in most cases such decisions are not revoked by the principal.

Non-durable power of attorney provides limitation in terms of the scope of decisions made by the agent. This is usually referred to as general powers of attorney and the agent can make decisions in regards to specific interests of the principle usually after consultations with the principal and the principal in turn has power to revoke such decisions made by the agent.

The agent holding a non-durable power of attorney is faced with limitations in terms of time for representing the principal since they cannot act in the interest of the principal when the principal is incapacitated. Their power usually lasts as long as the principal is of sound mind and capable of making decisions and incapacitation of which will see their power invalidated.

Having a durable power of attorney gives the agent more power while an agent with a non-durable power acts only when the principal is competent to make decisions.