A non-durable power of attorney gives someone the authority to make medical decisions or conduct financial transactions (usually the latter) on your behalf. Unlike a durable power of attorney, it terminates as soon as you lose capacity — referring to a state where you are unconscious, mentally unaware, or unable to make decisions for yourself.
Many Albuquerque lawyers will recommend a durable financial or medical power of attorney for estate planning purposes. These documents allow someone to step up in a time of need when you lose consciousness or decline in mental faculties. However, a non-durable power of attorney can have its own benefits. They are especially helpful if you have a specific task or transaction to take care of that you cannot physically be present to handle yourself.
A non-durable power of attorney usually applies to financial transactions. The non-durable power of attorney is typically limited in scope and often created for a specific purpose, such as filing taxes or closing a real estate deal.
Talk to an Albuquerque lawyer at New Mexico Financial Law for guidance on using these documents to their fullest potential while avoiding common pitfalls. Call our Albuquerque law firm at 505-503-1637 or contact us online to schedule a no-obligation consultation and learn more about using non-durable power of attorney today.
Non-durable powers of attorney are often drafted for a specific purpose. It may be a one-time purpose, such as for a specific purchasing transaction. Or, it can be for a recurring event, such as filing quarterly taxes for a business.
While it may seem like a relatively simple affair to draft up a document that grants limited authority to someone else, the truth is that the wrong language can lead to major complications. Some of your biggest risks include:
Meeting with an experienced Albuquerque lawyer gives you the experience and legal knowledge needed to understand exactly what type of non-durable power of attorney might be the best fit for your particular situation. A lawyer can also review any non-durable power of attorney agreement you are considering or have been asked to sign. With their knowledge of these documents — and the ability to have seen examples of them play out, in both good and bad ways — you can anticipate problems and choose the optimal arrangements for your unique situation.
When you come to New Mexico Financial Law, we always take the time to carefully review your situation, including why you think you need a non-durable power of attorney. We will also ask for the background for what brought this apparent need on, as well as any other factors relevant to your situation. We can then recommend specific language or provisions to create the best non-durable power of attorney possible.
With our help, you can consider your powers of attorney within your overall situation, including any estate plans you have. Reach out to our office for seasoned guidance, a review of any proposed non-durable power of attorney arrangements, and answers to any questions you may have on these matters.
A non-durable power of attorney is a document that vests another person (called the agent or attorney-in-fact) with the authority to act on your behalf — but only when you have the capacity to monitor their activities and make decisions for yourself. Unlike a durable power of attorney, the non-durable power of attorney terminates the moment the person who created it (called the principal) loses capacity.
People frequently use non-durable powers of attorney to delegate certain tasks to another individual or organization. One common example is that an accountant or lawyer may be given non-durable power of attorney to negotiate with the IRS on a repayment plan for someone who has fallen behind on taxes. A lawyer may also be given power of attorney to enable them to agree to an insurance payout or request certain sensitive documents.
The major advantage of these arrangements is that “compared to a durable power of attorney, a nondurable POA generally involves less risk and more legal protections because you can set explicit limits on what is allowed and for how long,” in the words of the Center for a Secure Retirement.
In theory, your agent only performs actions that you could monitor and, if needed, halt or reverse. Because they can only act while you have capacity, there is a much lower risk that they would be able to take actions you would disagree with or be unable to stop.
In practice, though, it is still critical to think carefully about who you select for your agent and the powers they are given. By working with an experienced Albuquerque lawyer, you can ensure that your non-durable power of attorney is fit for purpose and does not introduce any risks that you would feel uncomfortable with.
State law (NM Stat § 45-5B-104) assumes that a power of attorney document is meant to be durable “unless it expressly provides that it is terminated by the incapacity of the principal.”
It is beneficial to explicitly state in a power of attorney whether it is intended to be durable or non-durable, in any case. Having specific language to this effect reduces the risk of confusion or disagreement among concerned parties.
Unless it specifies otherwise, a non-durable power of attorney becomes active the moment it is signed by the principal.
Optionally, the principal can specify a time when the power of attorney activates, such as “July 25, 2026” or “three weeks from the date of signing.”
The principal can also specify a condition that would cause the non-durable power of attorney to activate, such as “when I leave U.S. soil” or “when I send a message to my agent requesting that they fulfill a duty within their scope of authority.”
A non-durable power of attorney remains active until the principal loses capacity, dies, or explicitly revokes the authority of their agent. The principal can also optionally create a time limit or condition that causes the non-durable power of attorney to automatically be revoked.
Some common examples of terminating conditions that the principal could specify including declaring a specific time period (“August 2 – December 13, 2025”), a duration (“for six months from the day of execution of this document”), or condition (“the completion of the sale of the property at 123 Mockingbird Lane”).
Without any such specifications, the non-durable power of attorney terminates once the principal has lost capacity. To determine incapacity, two qualified health care providers — one of whom must be a physician — have to certify that the principal is in an incapacitated condition. Since this process could create delays in the termination of the agent’s powers, the principal may wish to write in a temporary hold on the agent’s powers any time incapacity could be reasonably suspected by a provider or another specified person.
Alternatively, the principal can define a condition other than medical incapacity that would cause their non-durable power of attorney to automatically terminate. For example, they could have it terminate the moment they are unable to recall certain information or handle certain tasks on their own.
Importantly, while a principal has to draft and sign a non-durable power of attorney agreement to activate their agent’s authority, they can make a verbal statement or other expression of a desire to revoke the agent’s authority without requiring a written document or signature. Nevertheless, having a revocation in writing and signed by the principal is recommended. This documents their wishes and reduces the risk that anyone could have plausible deniability as to their knowledge of the revocation.
Non-durable power of attorney always applies to non-medical matters, unless the document granting authority specifically gives the agent the ability to access medical files, consent to procedures, or make treatment decisions on the principal’s behalf.
Otherwise, if the power of attorney document does not specify which abilities the agent has, the assumption is that the agent is being given general powers. These can include the ability to do the following:
When an agent has all of these powers, it is referred to as giving them a “general” power of attorney. However, a non-durable power of attorney will typically seek to limit the agent’s scope of authority to handle specific tasks.
For example, someone may be given limited permission for a certain period of time to communicate with the Centers for Medicare and Medicaid in order to modify coverage or request needed records. The non-durable power of attorney is then likely to expire after the principal’s goals have been achieved.
As another common example, an attorney-in-fact may be present at the closing of a real estate deal to sign on the principal’s behalf. After the transaction concludes, the agent’s authority terminates.
In other cases, the agent may have an ongoing duty to handle specific tasks on behalf of the principal. For example, they may be asked to periodically go into the principal’s IRA account and make modifications to optimize their account’s growth or overall stability. In this type of arrangement, the agent retains authority indefinitely, but their scope of authority is highly limited to specific situations.
Note that banks and other institutions often require that the principal give their agent specific consent to handle certain transactions. They may also require a context or a clear time period for the delegation of authority, such as having the principal specify that the agent is authorized to act “in all matters pertaining to my accounts for the foreseeable future” or “for the purposes of handling my affairs while I am out of the country from March 1, 2026 – February 28, 2027.”
A principal can give someone non-durable power of attorney in Albuquerque by creating a written document, specifying the person (or organization or people) who receives authority, specifying the scope of their authority, and providing a start or end date/condition if they are required.
The principal must then sign this document for it to become active. They can optionally have it notarized to assert the authenticity of their signature and reduce the risk of disputes.
While a durable power of attorney is highly useful and recommended by organizations, including the American Bar Association, having a non-durable power of attorney can also be beneficial for specific situations.
You may encounter a need to assign non-durable power of attorney for a specific reason, such as the need to work with the IRS through an accountant. You may also simply desire the convenience of having someone recognized by your bank or other financial institution to handle transactions in case the need arises.
In any case, New Mexico Financial Law is available to assist you. We can provide you with an experienced lawyer in Albuquerque to create a custom, non-durable power of attorney or review any agreement you are considering.
Get help handling non-durable power of attorney in Albuquerque when you call 505-503-1637 or contact us online to schedule a confidential, no-obligation case review.
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