The concept of durable power of attorney has obtained a considerable popularity in recent years. About 30 states have abrogated the common law rules. The provisions of the Uniform Probate Code provided the major impetus. About 18 states have provisions identical to, or closely resembling, the OPC sections. The popularity of this single subject led the Joint Editorial Board for the Uniform Probate Code to consider a separate Uniform Durable Power of Attorney Act which would also, within the total text of the OPC, provide some salutory amendments to that major Code.
Common law powers of attorney did not survive the incompetence of the principal, the person delegating the power. Before the OPC, it was often thought (and enacted in law in Virginia) that a power of attorney which survived the principal's incompetence would provide a simple way for people of modest means to deal with their property in the same way wealthier people use revocable, inter-vivos trusts. The durable power provision of the OPC provided for survival after incompetence if the language of the instrument indicated this to be the principal's intent. This is the main feature of the durable power concept.
The Uniform Durable Power of Attorney Act retains this central policy. It, perhaps, polishes the concept a little more than the original OPC provisions: (1) it provides for transfer to a -later appointed trustee or other fiduciary and an accounting to the trustee or fiduciary, as well as to the principal, and (2) it allows the holder of the power to exercise it on the death of the principal, if its exercise is in good faith and without knowledge of the death. These modifications take care of some problems known to have occurred in existing durable power jurisdictions.
An improved Durable Power of Attorney Act may now be enacted as a free-standing Act or as part of the UPC. The popularity of this subject, coupled with the general interest in probate reform, should make the Act of great interest in all jurisdictions.