What is the difference between a Statutory Durable Power of Attorney and a Durable General Power of Attorney?

Asked almost 2 years ago - Lewisville, TX

My mother has signed both but, in reviewing them, appear to have very similar language stated in different formats. Are they both necessary? Does one override the other? Do both together present a more complete Power of Attorney document?

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  1. Paula Brown Sinclair

    Contributor Level 20

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    Answered . The naming of these documents, often used for incapacity planning, has created considerable public confusion. Here is the vocabulary lesson:
    A power of attorney is a document that delegates to another person something the grantor has the nature right and authority to do, such as sign a document or instruct a doctor. Powers of attorney serve a wide variety of specific purposes, some of which are sometimes hinted in the document name.
    A "durable" power of attorney survives incompetence, the point at which the grantor would have the right and authority to revoke the power. Powers of attorney that are not "durable" by their own language, as a general rule, expire upon incompetence.
    A "springing" power of attorney is intended to be activated at a later date when the services delegated in the power are needed.
    A "statutory" power of attorney is one for which the language and content is prescribed by statute. Two very common statutory forms are for medical care and for financial management.
    A "general power of attorney" is a term of art that delegates financial management powers.

    To have two similar powers of attorney, both pretending to meet the same needs, is not prudent. Most family and elder law attorneys recommend having a durable general power of attorney which should be "springing" if financial management assistance is not presently needed, and should be executed in the statutory form if one exists. The second important power of attorney would be for medical care decision-making, and may go by the name of "health care power of attorney" or "medical proxy."

    If your mother is still competent to execute a power of attorney, she should consult with an experienced elder law attorney to correct the possible duplication and insure that her needs will be met as she ages, that her "affairs are in order."

    Best wishes for an outcome that meets your mothers needs, and please remember to designate a best answer.

    This answer is offered as a public service for general information only and may not be relied upon as legal advice.
  2. Alan Baker

    Contributor Level 13

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    Answered . I agree with attorney Sinclair. I would also suggest you go with your mother to the attorney who prepared the documents to obtain an explanation concerning these POAs and make sure she was not overcharged by paying twice for the same thing with different names.

  3. James P. Frederick

    Contributor Level 20

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    Answered . I also agree with Attorney Sinclair. It is my guess that your mother either tried to do this on her own, or did it on her own and then followed up with another POA. It SOUNDS like the forms in question accomplish the same purpose and that either one or both of them COULD be used. Whether one or the other is more appropriate for your mother's situation cannot be determined without reviewing the actual forms. If they were signed several years ago, and if your mother still has capacity to sign a new form, she should have an attorney review both documents to determine if they would still be valid, and/or whether it would be best to have a new form prepared. Upon reviewing a client's estate plan, recently, I noticed that her POA form had language that "expired" in 2005. If there is anything like that in your mother's documents, they will need to be updated.

    James Frederick

    ***Please be sure to mark if you find the answer "helpful" or a "best" answer. Thank you! I hope this helps. ******... more

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