When a couple gets married, and they decide to update all their paperwork, including living wills and what not, in many cases, the spouses will list one another as their durable power of attorney.

In most cases, this doesn’t prove to have any problems, but things can get a little bit tricky when the couple decides to go their own separate ways and end their union. Before we talk about what happens to a power of attorney during the divorce process, we must first take a few minutes to become familiar with the power of attorney and its many forms.

What is the Durable Power of Attorney?

When it comes to a power of attorney, there are not only a number of different levels, but there are two very distinct powers of attorney that judge exactly when they become active.  

With a durable power of attorney, the document becomes active immediately upon signing. This means that the person named as a power of attorney obtains legal authority to make decisions about any matter detailed in the document. They also maintain the authority no matter if the principal individual ever becomes incapacitated.  

This also means that the named individual remains the power of attorney after the individual becomes incapacitated. These permissions will allow the trusted individual to legally take care of important matters for you, such as paying your bills, directing your medical care and managing your investments.

The Difference Between Durable and Springing Power of Attorney

While a durable power of attorney names an individual as power of attorney immediately and gives them the power of immediately, a springing power of attorney is a little bit different.

So, what makes a durable power of attorney different from a springing power of attorney? A springing power of attorney names an agent well in advance of the principal becoming incapacitated. However, that agent does not have the legal authority to make decisions until the principal becomes incapacitated.

In the case of a springing power of attorney, the principle must be very specific when naming the conditions that meet the requirements to become active. This means that the principle must point out what “incapacitated” really means. Does it mean that the principle can no longer talk? Alternatively, does it mean that they are in a comatose state?

The more specific the principle is when outlining the power of attorney document, the easier it will be when the time comes that the agent must take over the decision making.

Different Forms of Power of Attorney

We know that there are two types of power of attorney that indicate when the named agent takes over responsibility for the decision making, but there are also different levels of power of attorney. By types, we mean levels, as in what level of decision making that the agent is allowed to make.

Power of attorney doesn’t just give someone else the power to make medical decisions in the case that someone becomes incapacitated. In fact, the named agent in a documented power of attorney may be given authority not only over medical decisions but also financial decisions.

Below we will take a look at the different levels of power of attorney that a principle may give to their named agent. Take a few minutes to familiarize yourself with the different levels.

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POWER OF ATTORNEY  LEVELS

General Power of Attorney

The general power of attorney gives the named agent the authority to act in a variety of different situation, such as purchasing or selling real estate and personal property, managing any banking or investments, and handling takes and any lawsuits.

Limited Power of Attorney

Limited power of attorney gives the named agent the authority to act only in limited situations. These situations must be written out and specified in the power of attorney documentation. Limited power of attorney is also known as the special power of attorney.

Medical Power of Attorney

The medical power of attorney is an important one because it gives someone the authority to make medical treatment decisions for you in the event that you are mentally or physically unable to make the decision yourself.

Because states have different laws regarding the medical power of attorney, you may see this specific document labeled as one of the following documents:

  • Durable Power of Attorney for Health Care
  • Designation of Patient Advocate
  • Designation of Health Care Surrogate
  • Health Care Proxy

Are There Disadvantages to a Durable Power of Attorney?

Besides the fact that signing and documenting a durable power of attorney can be upsetting and intimidating to some, there are a few disadvantages to naming someone as a power of attorney.

First of all, the named individual may choose not to honor the power of attorney documentation. This generally means that the named individual simply doesn’t want to have that responsibility. It is really important for the principle individual to talk to their loved ones and decide who is not only capable of following through with the duties of a power of attorney but those who are willing to do so.

The other downside to a durable power of attorney is the fact that potential for fraud is very real. There are many cases in which the acting power of attorney oversteps their boundaries and gets involved in embezzlement and unlawful gifting and have even been known to change beneficiary designations on life insurance and annuities or even open new bank accounts with joint titles.  

Durable Power of Attorney and Divorce

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Power of attorney can be a bit tricky when it comes to divorce. What many people don’t realize right off the bat is that once you name your spouse as your durable power of attorney, it remains valid until it has been legally revoked.

Many people assume that in the case of divorce, a power of attorney is automatically revoked, but that is not the case. Again, powers of attorney are still valid even upon divorce.

Is it always vital to revoke that power of attorney before getting a divorce? That is another tricky question as it really depends on the nature of the relationship between the couple as they are separating. If the couple is mutually walking away from a romantic relationship, but are fully capable of maintaining a close, trusting relationship, then it may not be necessary to revoke a power of attorney fully.

There is the possibility to revoke parts of the power of attorney if you chose to allow them the make medical decision, yet not have access or control over your other assets. The trouble with even maintaining a partial power of attorney with your ex-spouse is that things can get rather hairy if the two of you have problems down the line.

Revoking a Power of Attorney

If divorce is something that may be a real possibility, and you know that you two will not be able to maintain a strong relationship afterward, then revoking their power of attorney is probably the best option.

So how does a person go about doing so?

As long as you are mentally competent, then revoking someone’s power of attorney isn’t all that difficult.  In most cases all the principle individual should need to do is write up the revocation, usually, with the help of an attorney, sign it in front of a notary public and then have the revocation delivered to not only the signed agent but any third parties, such as your bank or insurance providers.

Assigning a Durable Power of Attorney Should Not Be Taken Lightly

When it comes to assigning a durable power of attorney, the decision needs to be taken seriously. Thinking of the “what ifs” can be scary, there is no doubt about that, but being prepared for those possible events can help not only ease your anxieties but those of your loved ones as well.

That being said, any power of attorney should be thought through very carefully. This person will be in charge of your medical and financial decisions should you become unable to do so.

That means that you will want someone that not only you trust, but that you know your family will trust and respect. In the case of family troubles, it is a smart choice to revisit and update your power of attorney and other documents, such as your living will, on a yearly basis so that there can be no arguments as to its legitimacy.

Most importantly, don’t be caught off guard. Having these sorts of documents lined up and taken care of in advance will help keep everyone at ease and make any difficult decisions that much easier later on.


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