Instrument: Durable Power of Attorney (DPOA)

What is it for?
The “durable power of attorney” (DPOA) allows an adult (the “principal”) to appoint an “attorney in fact” to make decisions about the principal’s property on the principal’s behalf. The DPOA may not be used for other kinds of decisions, such as health care decisions.

What does it do?
The agent has the authority to make decisions on the principal’s behalf with respect to the principal’s property. A DPOA may give the agent either this broad, “general” authority, or “limited” authority that is specific to only certain kinds of decisions or portions of the principal’s property. Certain types of decisions, such as making gifts, require an express grant of authority in the DPOA. Mont. Code Ann. § 72-31-336.

A DPOA is presumed to be durable, that is, to remain valid despite the principal’s incapacity, unless it expressly provides that it is terminated by the incapacity of the principal. Neb. Rev. Stat. Ann. § 30-4004.

An agent must act in good faith, in accordance with the principal’s reasonable expectations as known to the agent, and within the scope of the DPOA. The agent has a duty to act loyally for the principal’s benefit, to avoid conflicts of interest, to act with care, competence, and diligence, and to coordinate with any agent appointed to make health care decisions for the principal. Neb. Rev. Stat. Ann. § 30-4014.

Third parties generally must accept acts by an agent as if they had been done by a principal unless they know that the agent’s authority has ended or the DPOA is invalid. Third parties may also request a certification from the agent that the agent’s authority remains in effect. Neb. Rev. Stat. Ann. § 30-4020.

How does one make it?
A DPOA must be signed or by the principal or by another individual at the principal’s direction and in the principal’s conscious presence, and notarized. Neb. Rev. Stat. Ann. § 30-4005.

When does it come into effect?
The agent’s authority becomes effective when the DPOA is executed, unless the DPOA provides for it to become effective at a future date or upon the occurrence of a future event. The principal may authorize one or more persons to determine in writing or other record that the specified event has occurred. Neb. Rev. Stat. Ann. § 30-4009(1). If the DPOA takes effect upon the principal’s incapacity, as determined by either a licensed physician or psychologist, or a court or appropriate government official. Neb. Rev. Stat. Ann. § 30-4009(3).

“Incapacity” is defined as the principal’s inability to manage property or business affairs due to an impairment in the principal’s ability to receive and evaluate information or make or communicate decisions even with the use of technological assistance. Neb. Rev. Stat. Ann. § 30-4002(6).

How long does it last?
A DPOA terminates when the principal or agent dies, the principal or agent becomes incapacitated, the principal revokes the power of attorney, the purpose of the power of attorney is accomplished or terminates, or the agent resigns. Neb. Rev. Stat. Ann. § 30-4010(1).

How does one end it?
Presumably, a principal may revoke a DPOA by destroying it. For a revocation to be effective, the principal must also notify the agent of the revocation. Neb. Rev. Stat. Ann. § 30-4010(4). A subsequent DPOA does not automatically revoke a previously executed OA unless the subsequent DPOA specifically states so. Neb. Rev. Stat. Ann. § 30-4010(6).

What does an example look like?
There is a statutory DPOA form at Neb. Rev. Stat. Ann. § 30-4041.

What else should one know?
Nebraska’s DPOA is based on the Uniform Power of Attorney Act.

Last updated May 2022

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