Durable Medical Power Of Attorney
Q.I'm a student at a law school and recently I have some assigment with some issue that I haven't understood clearly. So I'm vary in need of a very short explanation of the difference between a DURABLE Power of Attorney and a General Power of Attorney. Does the Durable variety survive the grantor? Anyone help me???
A.Though your statute and mileage may vary (and durable powers of attorney and living wills are increasingly the subject of statutes), the answer in Georgia is no. Durable powers of attorney do survive the grantor's incapacity, whether through physical or mental illness, but not the grantor's death. I think the rationale is that nothing exists after the grantor's death for the power of attorney to operate on, as the nature of a power of attorney is essentially a permission. Further, letting such a POA operate after death would allow a person to bypass the requirements for executing a testamentary document (i.e., a will) and the goals of such requirements (certainty as to testator's intent, orderly distribution of assets, etc.). The difference is that a durable power survives the incapacity of the principal (but a general power does not). A durable power of attorney _may_ contain medical provisions. If it does, it may be called a living will. The agent under a DPOA may make decisions about the matters that may be set forth in the DPOA, e.g., paying the bills, buying and selling property, doing tax returns, etc. The agent under a living will makes medical decisions. The states regulate both types of instruments.
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