Power of attorney guide
Durable Power of Attorney
A durable power of attorney keeps working if you later lose the ability to make decisions for yourself. That one word — durable — is what separates it from an ordinary power of attorney, which ends at exactly the moment most people need it. In almost every state the document has to be signed before a notary, and several also require witnesses.
Also called: durable POA, DPOA, statutory durable power of attorney.
What “durable” means
Under the common law an agent's authority ended when the principal became incapacitated, because an agent cannot do what the principal could no longer do. A durable power of attorney reverses that rule with a single sentence — typically “This power of attorney shall not be affected by subsequent disability or incapacity of the principal.” Most states that adopted the Uniform Power of Attorney Act go further and make every power of attorney durable unless it says otherwise.
Durability is about incapacity, not death. Every power of attorney, durable or not, ends when the principal dies. After that the executor or personal representative takes over, not the agent.
Durable versus general, springing and medical
A general power of attorney grants broad financial authority but, unless it is also durable, ends on incapacity. A springing power of attorney starts only when a stated event happens, usually a doctor certifying incapacity. A medical power of attorney covers health care decisions rather than money. A durable financial power of attorney and a medical power of attorney together are the usual pairing in an estate plan.
Durable powers of attorney are almost always effective immediately. That is deliberate: if the document only springs into effect on incapacity, the agent has to prove incapacity to every bank before they can act, which is exactly the delay the document was meant to avoid.
Signing requirements
The signing formalities are set by state law, not by the word “durable.” Texas, New York, North Carolina, Utah and most Uniform Power of Attorney Act states require the principal's signature to be acknowledged before a notary. Florida, Connecticut, Pennsylvania, South Carolina and New York add two witnesses; Georgia, Arizona, Delaware, Illinois and Vermont add one. California lets you choose between a notary and two witnesses, but a notary is required the moment the document will touch real estate.
Where a state only presumes a notarized signature is genuine rather than requiring it, notarize it anyway. Banks, brokerages and title companies reject un-notarized powers of attorney as a matter of policy, and a durable power of attorney that will be used for real estate has to be acknowledged before it can be recorded.
Using a durable power of attorney
The agent signs as “[Principal], by [Agent], attorney-in-fact” and presents the original or a certified copy. Many institutions ask for their own agent certification — a short sworn statement that the power of attorney is still in force — and some will only accept a document signed within the last few years, even though the law has no such limit.
Keep the original somewhere the agent can reach it, give the agent a copy, and tell the bank about it before it is needed. A durable power of attorney that no one can find is not durable in practice.
Durable power of attorney: rules by state
- Texas
- California
- Florida
- New York
- Alabama
- Alaska
- Arizona
- Arkansas
- Colorado
- Connecticut
- Delaware
- Georgia
- Hawaii
- Idaho
- Illinois
- Indiana
- Iowa
- Kansas
- Kentucky
- Louisiana
- Maine
- Maryland
- Massachusetts
- Michigan
- Minnesota
- Mississippi
- Missouri
- Montana
- Nebraska
- Nevada
- New Hampshire
- New Jersey
- New Mexico
- North Carolina
- North Dakota
- Ohio
- Oklahoma
- Oregon
- Pennsylvania
- Rhode Island
- South Carolina
- South Dakota
- Tennessee
- Utah
- Vermont
- Virginia
- Washington
- Washington, D.C.
- West Virginia
- Wisconsin
- Wyoming
Common questions
- Does a durable power of attorney need to be notarized?
- In most states, yes — the principal's signature must be acknowledged before a notary. In the handful of states that only presume a notarized signature is genuine, notarization is still the practical requirement because banks and recorders will not accept the document without it.
- When does a durable power of attorney take effect?
- Usually as soon as it is signed, unless the document says it springs into effect later. “Durable” describes how long it lasts, not when it starts.
- Does a durable power of attorney survive death?
- No. Every power of attorney ends at the principal's death. The agent's authority is replaced by that of the executor or personal representative named in the will or appointed by the probate court.
- Can I notarize a durable power of attorney online?
- Yes, in every state that recognizes a notarization performed under another state's law — which is every state — subject to the document's own witness requirements. Where witnesses are needed, they can appear on the same video session under Florida's remote witnessing rules.
Notarize a power of attorney online
A durable power of attorney follows your state's signing rules — notary in most states, witnesses in some. Upload the document, verify your ID, and sign on video with a commissioned online notary in about 15 minutes. Witnesses, where your state requires them, can join the same session.
Related types
Financial power of attorney
Banking, bills, investments, taxes and property. Usually durable; usually on the state's statutory form.
Springing power of attorney
Takes effect only when a stated event happens — usually a doctor's finding of incapacity.
Medical power of attorney
Names someone to make health care decisions when you cannot. Witness rules vary by state.
All types of power of attorney and the state-by-state table →
General information about how powers of attorney are signed, not legal advice. Execution rules are set by each state’s statute and change; the sources on each state page link to the current text. Whether a particular bank, recorder, agency or title company accepts a document is its own decision — confirm with the receiving party before signing. Rush Notary’s notaries are commissioned online notaries public in Florida who notarize for signers in every state under Florida’s remote online notarization law; see the online notarization requirements for your state.