Instrument: Durable Power of Attorney (DPOA)

What is it for?
The durable power of attorney (DPOA) is a written document by which an adult (the “principal”) designates another person as the principal’s agent to make financial decisions on the principal’s behalf. The agent will be able to make decisions and act with respect to the principal’s property whether or not the principal has capacity to do so.

What does it do?
The DPOA is a written instrument by which a principal designates another person as the principal’s agent for financial decisions. The agent’s decisions on the principal’s behalf have the same binding effect as if the principal had made them. Ariz. Rev. Stat. Ann. § 14-5502.

This instrument is considered “durable” because it remains in effect even if the principal lacks capacity to make those decisions on their own. The DPOA must contain specific language that the principal intends for the agent’s authority to remain in effect notwithstanding the principal’s incapacitation. Ariz. Rev. Stat. Ann. § 14-5501(A) & (B).

A DPOA does not, however, give the agent authority to make health care decisions.

How does one make it?
The principal must “have capacity” at the time of executing the DPOA. Arizona defines having capacity as being “capable of understanding in a reasonable manner the nature and effect of the act of executing and granting the power of attorney.” Ariz. Rev. Stat. Ann. § 14-5506(D)(1).

Also, a DPOA must satisfy all the following requirements:

  1. Contains language that clearly indicates that the principal intends to create a power of attorney and clearly identifies the agent.
  2. Is signed or marked by the principal or signed in the principal’s name by some other individual in the principal’s conscious presence and at the principal’s direction.
  3. Is witnessed by a person other than the agent, the agent’s spouse, the agent’s children or the notary public.
  4. Is executed and attested by its acknowledgment by the principal and by an affidavit of the witness before a notary public and evidenced by the notary public’s certificate, under official seal. Ariz. Rev. Stat. Ann. § 14-5501(D).

When does it come into effect?
The agent’s authority may come into effect either immediately or only upon the principal’s incapacitation, depending on the terms of the DPOA.

How long does it last?
The DPOA lasts until the principal’s death, unless the DPOA itself specifies otherwise.

How does one end it?
The DPOA can specify an end or it can be revoked by the principal, although Arizona’s statute does not state the means the principal should use to revoke the DPOA.

What does an example look like?
The Arizona statute does not provide a DPOA form. The Superior Court of Maricopa provides various forms for specific purposes, including both a financial DPOA and a health care POA, which are available here.

What else should one know?
Arizona’s DPOA is not based on the Uniform Power of Attorney Act.

Last updated April 2021

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