How Durable is a Durable Power of Attorney?

You know, I am constantly asked, “Mark, now that my loved one is dead, can I still use his durable power of attorney for his benefit, to pay his bills and what not?

No. They are not that durable. And you certainly cannot use it to make dispositions other than what is contained in the loved one’s will.

Durable means it survives incompetency, that is beyond that time the principal is able to revoke it, but is still alive.

If it is not durable it is only “general” or specific to a given task, like the soldier who gives his wife a power of attorney to close on the house they bought before was cut orders for deployment.

If I can quote Neil Young,

Hey hey, my my”

“Rock and Roll can never die”

Once your gone, you can’t come back, “

“When your out of the blue and into the black“.

The same is true for the durable power of attorney. Once you are gone your power of attorney becomes a historical document and the will takes over. Unlike Rock and Roll, the Durable Power of Attorney can die, it dies with its maker.

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