Durable Power of Attorney, Explained

By Rozsa Gyene, California estate planning attorney, State Bar of California #208356. Published October 1, 2026. Last reviewed October 1, 2026

People search for what a durable power of attorney is because the phrase sounds like a legal formality, and in a sense it is: the document does nothing until it is needed. When it is needed, it is the difference between a family member paying your bills next week and a court proceeding to appoint a guardian. This guide uses the New York General Obligations Law, Article 5, Title 15, and Pennsylvania's power of attorney chapter, 20 Pa.C.S. Chapter 56, as worked examples, because both states rewrote their statutes in detail and quote well. Other states have their own rules, and your own document is signed under your state's law.

What the document does

New York defines the terms. A power of attorney is a written document by which a principal with capacity designates an agent to act on his or her behalf; the principal is an individual who is eighteen years of age or older, acting for himself or herself; and an agent acting under a power of attorney has a fiduciary relationship with the principal (General Obligations Law 5-1501(2)(a), (j) and (k)). New York publishes a statutory short form, and its opening caution to the principal says plainly what the document is: you give the person whom you choose authority to spend your money and sell or dispose of your property during your lifetime without telling you, and you do not lose your authority to act even though you have given your agent similar authority (section 5-1513(a)).

Pennsylvania requires a similar notice at the beginning of every power of attorney, signed by the principal: the purpose of this power of attorney is to give the person you designate broad powers to handle your property, which may include powers to sell or otherwise dispose of any real or personal property without advance notice to you or approval by you (20 Pa.C.S. 5601(c)). The subjects an agent can be given are listed in the statutes: in New York, real estate, chattel and goods, bond, share and commodity, banking, business operating, insurance, estate, claims and litigation, personal and family maintenance, government benefits, financial matters related to health care, retirement benefits, tax matters and all other matters (section 5-1513(f)); in Pennsylvania, a parallel list of phrases such as to engage in real property transactions, to engage in banking and financial transactions, to engage in retirement plan transactions, to pursue tax matters and to provide for personal and family maintenance, each of which the statute defines (sections 5602(a) and 5603). Neither document covers medical decisions: New York's form tells the principal that the agent cannot make health care decisions and that a health care proxy does that (section 5-1513(a)), and Pennsylvania's execution, notice and agent duty rules do not apply to a power of attorney that exclusively provides for health care decision making (section 5601(e.2)).

Durable versus nondurable

The word durable answers one question: does the agent's authority survive the principal's incapacity? A nondurable power ends when the principal loses capacity, which defeats the purpose for estate planning, and both states now make durable the default. New York: a power of attorney is durable unless it expressly provides that it is terminated by the incapacity of the principal, and the subsequent incapacity of a principal shall not revoke or terminate the authority of an agent who acts under a durable power of attorney (General Obligations Law 5-1501A). Pennsylvania: unless specifically provided otherwise in the power of attorney, all powers of attorney shall be durable (20 Pa.C.S. 5601.1), and the authority conferred shall be exercisable notwithstanding the principal's subsequent disability or incapacity (section 5604(a)). A nondurable power is one the principal has deliberately limited; in New York it terminates when the principal becomes incapacitated (section 5-1511(1)(b)), and in Pennsylvania the incapacity of a principal under a power that is not durable does not terminate the agency as to an agent or other person who acts in good faith without actual knowledge of the incapacity (section 5605(b)).

Durability also settles what happens if a court later appoints a guardian. In New York, if a guardian is appointed for the principal, the agent, during the continuance of the appointment, shall account to the guardian rather than to the principal (section 5-1501A(2)). In Pennsylvania the agent is accountable to the guardian as well as to the principal, the court decides in its guardianship order whether and to what extent the durable power of attorney remains in effect, and the principal may use the durable power of attorney to nominate the guardian, a nomination the court follows except for good cause or disqualification (section 5604(c)).

Springing versus immediate

An immediate power is effective as soon as it is properly signed; a springing power takes effect later, on a date or an event the document names, most often the principal's incapacity. New York's rule for the ordinary case is that the date on which an agent's signature is acknowledged is the effective date of the power of attorney as to that agent (General Obligations Law 5-1501B(3)(a)). For a springing power, if the power of attorney states that it takes effect upon the occurrence of a date or a contingency specified in the document, then it takes effect only when the date or contingency has occurred and the agent's signature has been acknowledged; if the document requires a named person to declare in writing that the contingency has occurred, that declaration satisfies the requirement without regard to whether the contingency has actually occurred (section 5-1501B(3)(b)).

Pennsylvania permits the same choice in its definition of a durable power: a principal may provide in the power of attorney that the power shall become effective at a specified future time or upon the occurrence of a specified contingency, including the disability or incapacity of the principal (20 Pa.C.S. 5604(a)). It then solves the practical problem of proving the event. An affidavit by the agent stating that, if applicable, the specified future time or contingency has occurred is conclusive proof that the specified time or contingency has occurred as to anyone who relies on it in good faith, and the agent shall furnish such an affidavit to a person relying upon the power of attorney on demand (section 5606). One reason to prefer an immediate power and rely on the choice of agent rather than a trigger is that a springing power asks a bank to satisfy itself that the trigger has happened before it will deal with the agent.

How it is signed

Both states require a notary and two witnesses, and both require the agent to sign as well. New York: the document must be typed or printed in letters no less than twelve point in size; signed, initialed and dated by a principal with capacity, with the signature acknowledged in the manner prescribed for the acknowledgment of a conveyance of real property and witnessed by two persons who are not named in the instrument as agents or as permissible recipients of gifts; and the person who takes the acknowledgment may also serve as one of the witnesses (General Obligations Law 5-1501B(1)(a) and (b)). It must also be signed and dated by any agent acting on behalf of the principal, with the agent's signature acknowledged, and it is not invalid solely because there has been a lapse of time between the principal's acknowledgment and the agent's (section 5-1501B(1)(c)). The form's caution to the principal and important information for the agent must appear in substantially the statutory wording (section 5-1501B(1)(d)).

Pennsylvania: a power of attorney shall be dated and signed by the principal, and the signature shall be acknowledged before a notary public or other individual authorized by law to take acknowledgments, who shall not be the agent designated in the power of attorney, and witnessed by two individuals, each of whom is 18 years of age or older, neither of whom may be the agent or the notary (20 Pa.C.S. 5601(b)(1) and (3)). The notice at the beginning must be signed by the principal; in the absence of a signed notice, if the agent's authority is challenged, the agent has the burden of demonstrating that the exercise of the authority is proper (section 5601(c)). And an agent shall have no authority to act unless the agent has first executed and affixed to the power of attorney an acknowledgment in the statutory form, promising to act in accordance with the principal's reasonable expectations, in good faith, and only within the scope of authority granted (section 5601(d)). A photocopy or electronically transmitted copy of an originally executed power of attorney has the same effect as the original except for filing or recording (section 5602(d)), and an acknowledged power may be recorded with the recorder of deeds of the county where the principal lives and of each county where affected real property is located (section 5602(c)).

Choosing an agent

The agent needs honesty, organization and availability more than financial sophistication, and the statutes let you build in structure. New York allows two or more co-agents, who must act jointly unless the principal provides otherwise, and one or more successor agents to serve if an initial agent resigns, dies, becomes incapacitated, is not qualified or declines; a successor agent has the same authority as the initial agent unless the document says otherwise (General Obligations Law 5-1508(1) and (2)). Any person other than an estate or a trust may serve (section 5-1508(4)). New York also lets a principal appoint a monitor, who may request, receive and compel the agent to provide a record of all receipts, disbursements and transactions entered into by the agent on behalf of the principal (section 5-1509). Pennsylvania likewise allows more than one agent, acting jointly unless the principal designates otherwise, successor agents who serve in the order named, and delegation of the power to appoint a successor (20 Pa.C.S. 5602(b)).

Pay is different in the two states. In New York an agent is not entitled to receive compensation from the assets of the principal unless the principal specifically provides for compensation in the power of attorney, though the agent is entitled to reimbursement for reasonable expenses actually incurred (section 5-1506). In Pennsylvania, in the absence of a specific provision to the contrary, the agent shall be entitled to reasonable compensation based upon the actual responsibilities assumed and performed, plus reimbursement for actual expenses advanced (section 5609). A family member who serves usually waives pay, but the document should say so if that is the intent.

What the agent may and may not do

The agent's authority is whatever the document grants, read against a statutory duty of loyalty. New York: in dealing with property of the principal, an agent shall observe the standard of care that would be observed by a prudent person dealing with property of another, and must act according to any instructions from the principal or, where there are no instructions, in the best interest of the principal, avoid conflicts of interest, keep the principal's property separate and distinct from the agent's own, and keep a record of all receipts, disbursements and transactions (General Obligations Law 5-1505(1) and (2)(a)). The agent may not make gifts of the principal's property to himself or herself without specific authorization in a power of attorney (section 5-1505(2)(a)(2)). Under the personal and family maintenance subject, the agent may continue gifts the principal customarily made, provided that in any one calendar year all such gifts shall not exceed five thousand dollars in the aggregate (section 5-1502I(14)); larger gifts, gifts to the agent, and changes to interests in the principal's property require express language in the modifications section (sections 5-1503 and 5-1513(g)). The agent must make the record and a copy of the power of attorney available within fifteen days of a written request by a monitor, a co-agent or successor agent, a government entity investigating abuse or neglect, a court evaluator, a guardian ad litem, the principal's guardian, or the personal representative of a deceased principal (section 5-1505(2)(a)(3)).

Pennsylvania's list is parallel. Notwithstanding any provision in the power of attorney, an agent shall act in accordance with the principal's reasonable expectations to the extent actually known by the agent and, otherwise, in the principal's best interest, act in good faith, and act only within the scope of authority granted (20 Pa.C.S. 5601.3(a)). Unless the document says otherwise, the agent shall also act loyally for the principal's benefit, keep the agent's funds separate from the principal's funds, avoid conflicts of interest, act with the care, competence and diligence ordinarily exercised by agents in similar circumstances, keep a record of all receipts, disbursements and transactions, and attempt to preserve the principal's estate plan (section 5601.3(b)). Certain acts require an express grant: creating, amending, revoking or terminating a trust, making a gift, creating or changing rights of survivorship or a beneficiary designation, delegating authority, disclaiming property, and accessing the content of the principal's electronic communications (section 5601.4(a)). Even with such a grant, an agent who is not an ancestor, spouse or descendant of the principal may not use it to create an interest in the principal's property for the agent (section 5601.4(b)). On request from the principal, a guardian, or after death the personal representative, the agent must disclose receipts, disbursements and transactions within 30 days, or explain in writing why more time is needed and comply within a further 30 days (section 5601.3(d)), and a court may order the agent to file an account at any time (section 5610).

Third parties get protection for honoring the document, which is what makes it usable. New York forbids a third party doing business in the state from refusing, without reasonable cause, to honor a properly executed statutory short form power of attorney, and requires it, not later than the tenth business day after presentation, to honor the document, reject it in a writing that sets forth the reasons, or ask the agent for an acknowledged affidavit that the power is in full force (General Obligations Law 5-1504(2) and (3)(a)); a lapse of time since execution is not a reasonable ground for refusal (section 5-1504(2)(b)). Pennsylvania lets a person who in good faith accepts a power of attorney without actual knowledge that it is void, invalid or terminated rely on it as if it were genuine, valid and still in effect (20 Pa.C.S. 5608(d)).

How it ends

New York lists the endings. A power of attorney terminates when the principal dies; when the principal becomes incapacitated, if the power is not durable; when the principal revokes it; when the agent dies, becomes incapacitated or resigns and there is no co-agent or successor agent willing and able to serve; when the purpose is accomplished; or when a court order revokes it (General Obligations Law 5-1511(1)). An agent's own authority ends if the agent's marriage to the principal is terminated by divorce or annulment, unless the document expressly provides otherwise (section 5-1511(2)(c)). A principal may revoke in accordance with the terms of the document or by delivering a revocation to the agent in person or by sending a signed and dated revocation by mail, courier, electronic transmission or facsimile to the agent's last known address, and the agent must comply (section 5-1511(3)). Termination is not effective as to a third party who has not received actual notice and acts in good faith (section 5-1511(5)(a)), and signing a new power of attorney does not revoke any power of attorney previously executed by the principal (section 5-1511(6)), so a revocation of the old one has to be written and delivered.

Pennsylvania's chapter has no single section headed revocation; its rules on ending a power are spread across sections 5604, 5605 and 5606. The death of a principal shall not revoke or terminate the agency as to the agent or other person who, without actual knowledge of the death of the principal, acts in good faith under the power (20 Pa.C.S. 5605(a)). If a principal names a spouse as agent and either of them files an action in divorce, the designation of the spouse is revoked as of the time the action was filed unless the document shows the designation was intended to survive (section 5605(c)). Unless the power of attorney states a time of termination, it is valid notwithstanding the lapse of time since its execution (section 5604(b)). The affidavit in section 5606 refers to termination of the power by revocation, death or, if applicable, disability or incapacity or the filing of an action in divorce, and an agent's affidavit that none of those has happened is conclusive proof for a person relying on the power. In both states the practical method of revoking is the same: sign a dated written revocation, deliver it to the agent, and send it to every bank and institution that has a copy of the old document.

How it fits with a living trust

A living trust and a durable power of attorney divide the same job. The trust holds the property that was retitled into it, and if you become incapacitated the successor trustee manages that property under the trust's terms; what a successor trustee does is covered in what a successor trustee does after you die. The power of attorney covers everything else: accounts never moved into the trust, retirement accounts and other assets held in your own name, tax returns, government benefits, insurance, and dealings with the trust itself. Pennsylvania draws the line precisely. A settlor's powers to revoke or amend the nondispositive provisions of a trust, or to withdraw property from it, may be exercised by an agent under a power of attorney only to the extent expressly authorized by the terms of the trust or the power (20 Pa.C.S. 7752(e)), and an agent may create, amend, revoke or terminate a trust only if the power of attorney expressly grants the authority (section 5601.4(a)(1)). Pennsylvania's listed powers include two that fund a trust during incapacity: to create a trust for my benefit and to make additions to an existing trust for my benefit, the second of which lets the agent add any or all of the principal's property to a trust that existed when the power was created, as long as that trust pays its income and principal for the principal's benefit during the principal's life (sections 5602(a)(2) and (3) and 5603(b) and (c)).

New York handles the same question through the estate transactions subject and the modifications section. Estate transactions authority lets the agent represent the principal in all matters affecting any trust or other fund out of which the principal is entitled to some share or payment, or with respect to which the principal is a fiduciary (General Obligations Law 5-1502G(2)), and the modifications section is where a principal adds authority the statutory subjects do not include, such as authority to transfer property to the principal's own living trust (section 5-1503(2)). Whether your agent should have the power to fund or change your trust is a drafting decision; a common choice in an estate plan is to allow transfers into the trust and to withhold any power to change who inherits. Because the power of attorney ends at death, the successor trustee and the executor, not the agent, handle everything that comes after.