A power of attorney (POA) is a popular tool for various legal situations, including healthcare and business issues. But there are multiple options to consider when drawing up a POA. Everyone has different needs and wishes, and the various POAs reflect that.

One question that arises frequently is how a durable POA differs from other types. Sometimes people think that the word “durable” means “set in stone” and “can’t be changed,” which isn’t the case. Or they worry that POAs that aren’t durable won’t hold up legally. Neither is true.

What Is a Power of Attorney?

To understand the role of the durable power of attorney, it’s necessary to understand the different kinds of POAs available in California. Overall, a power of attorney is a legal document that allows the person you name as the POA to make legal, medical, or financial decisions on your behalf at certain times. California recognizes three types of POAs.

  • Healthcare POA. When you draw up a healthcare POA, you name someone to make medical decisions on your behalf if you become incapacitated. This applies only to medical and end-of-life care decisions. 
  • Limited POA. As the name implies, this type of POA doesn’t grant broad powers to someone. It’s often used in business situations and gives specific authority to someone. For example, someone may have a POA that allows them to deposit checks into a business account, but not withdraw any money. 
  • General POA. This is the broadest category of POA. Someone assigned to this type of POA can handle many legal and financial decisions on your behalf. Note: the POA is not allowed to give themselves money or property that belongs to the person they’re representing. 

What Does a Durable Power of Attorney Do?

A durable POA is not a POA that stands on its own. Instead, it’s a variation on the limited and general POAs. It’s not about what kinds of decisions the person named as POA can make, but about when they can make them. One side of the timing coin is a durable POA, and the other is the springing POA. Both can apply to the limited and general POAs, but healthcare POAs are strictly springing POAs.

  • Durable POA. If a limited or general POA is designated as a durable POA, it goes into effect as soon as it’s signed and lasts until the person signing it changes it, revokes it, or becomes incapacitated. 
  • Springing POA. This type of POA doesn’t go into effect until the person assigned it becomes incapacitated. In a healthcare POA, it “springs” into effect so someone else can make medical or end-of-life decisions on behalf of the incapacitated person. In general or limited POAs, someone will begin making financial and legal decisions at the time of incapacitation.  

What Factors Should I Consider When Choosing Someone as My Durable Power of Attorney?

The most important factor is choosing someone you trust to carry out your wishes and who will look out for your best interests at all times. If you can’t trust them to do that, especially for a general POA, it’s better to find a different person. It’s also important to choose someone who can stand up for you and assert your wishes. People often choose their spouse, but that should be considered carefully, especially for legal and financial issues. If you have questions or concerns about how to choose a durable power of attorney, either limited or general, sitting down with an experienced estate planning attorney who can guide you through the selection process if recommended.

Is a Durable Power of Attorney Permanent?

No. You have the right to change or revoke the POA at any time, for any reason. It does not become invalid if you become incapacitated. People’s needs and relationships change over time, and the durable power of attorney can be amended to reflect that.

How Can I Set Up a Power of Attorney?

Call us at 949-260-1400 to work with one of our experienced estate planning attorneys. Our Orange County, California attorneys can help you determine which type of power of attorney best suits your needs and ensure that it’s properly drawn up and legally sound.