Durable General Power of Attorney (DPOA) allows a client to appoint someone they trust to manage financial and legal matters if the client becomes unable to act for themselves. In Oregon, this document is governed primarily by the Oregon Uniform Power of Attorney Act, ORS Chapter 127.
Within the Agile EP system, the Durable General Power of Attorney is designed to address financial decision-making during incapacity or other circumstances where the client cannot personally manage their affairs.
The DPOA determines:
Who will act as the client’s agent (attorney-in-fact)
When the agent may act
What authority the agent will have
This article explains how to draft the Durable General Power of Attorney within the Agile EP system.
Drafting as Part of a Plan or as a Standalone Document
The Durable General Power of Attorney is typically drafted as part of a Will-based or Trust-based estate planning package.
However, it may also be drafted as a standalone document.
To prepare the DPOA by itself:
Go to the Document Selection tab.
Select Durable General Power of Attorney.
Leave the other estate planning documents unselected.
As long as the required "people tabs" have been completed (Client Information, Family Information, and any necessary Additional People), the system will generate the DPOA without requiring the rest of the estate planning package.
Once those sections are finished, you may proceed to the DPOA tabs in the drafting interview to complete the document.
Complete the DPOA Financial Agents Tab
This tab designates the client’s agents (attorneys-in-fact) — the individuals who will have authority to act under the Durable General Power of Attorney.
- For mirrored documents (married or unmarried couples), complete this tab once. The answers automatically populate both clients’ documents.
- For single clients or non-mirrored couples, complete the tab separately for each person.
Agents are organized by levels of succession. At each level, you may name one agent or multiple co-agents who serve at the same priority level.
You may name up to four levels of agents, beginning with the initial agent and followed by successor levels.
For a detailed explanation of how fiduciary levels and co-agents operate in the system, see this article.
Complete the DPOA Agent Powers Tab
This tab allows you to design how and when the agent’s authority operates and what powers the agent will have when acting.
Effectiveness of the Power of Attorney
The Durable General Power of Attorney must specify when the Agent’s authority becomes effective. Oregon law allows a power of attorney to become effective immediately or upon the principal’s financial incapability. Within the Agile EP form, you may structure the effectiveness of the Agent’s authority in one of several ways.
Effective Immediately
If this option is selected, the Agent may act as soon as the Durable General Power of Attorney is executed. This structure allows the Agent to assist the principal with financial matters even while the principal remains fully capable.
Effective Upon Financial Incapability
If this option is selected, the Agent’s authority begins only when the principal becomes financially incapable. Under ORS 127.005 and ORS 125.005(3), financial incapability generally refers to the principal’s inability to manage property or financial affairs due to impairment or similar condition.
Hybrid Option (Spouse Immediate / Others Upon Financial Incapability)
Some clients prefer a hybrid approach. In this structure, the principal’s spouse may act immediately, while any other Agents may act only if the principal becomes financially incapable.
Regardless of the structure selected, the power of attorney remains durable, meaning it continues to be effective even if the principal later becomes financially incapable or incapacitated.
Determination of Financial Incapability
If the Agent’s authority becomes effective upon financial incapability, the document follows the statutory method for determining incapability under ORS 127.005.
Under this standard, financial incapability is typically determined by the principal’s regular physician or psychologist, or by another physician who has examined the principal if no regular provider exists.
To facilitate this determination, the document also authorizes the Agent to access relevant medical information as the principal’s personal representative under applicable privacy laws, including ORS 192.553, ORS 192.581, and HIPAA. This allows the Agent to obtain the information necessary to determine whether the conditions triggering the Agent’s authority have been met.
Co-Agent Design Decisions
Oregon law does not provide a default rule governing how co-agents must act. For that reason, the Agile EP form allows you to define how multiple Agents will operate if more than one person is serving. The interview asks two questions:
Can named Agents appoint a successor Agent if no other named Agents are available?
If selected, an acting Agent may designate a successor Agent (or successor Co-Agents) in writing if all previously named Agents are unable or unwilling to serve. This helps avoid gaps in authority if circumstances change.
How must Co-Agents act?
If more than one Agent is serving, you must decide whether they must:
Act jointly (or by majority if more than two Agents are serving), or
Act independently of one another.
The document also allows Co-Agents to delegate responsibilities among themselves in writing and clarifies that a Co-Agent is not liable for another Agent’s breach of fiduciary duty unless the Co-Agent participated in or concealed the breach.
Any successor Agent who begins serving has the same powers and limitations as the original Agent, and third parties may rely on the successor Agent’s representation that prior Agents are unable or unwilling to act.
Fiduciary Duties of the Agent
Oregon law provides only a limited default rule governing an agent’s conduct under a power of attorney. Under ORS 127.045, an agent must use the principal’s property for the benefit of the principal unless the document provides otherwise.
Because that statutory standard is minimal, the document establishes a broader fiduciary duty for the Agent.
The Agent must act in good faith, within the scope of the authority granted, and in a manner the Agent reasonably believes to be in the principal’s best interests. The Agent must also act loyally for the principal’s benefit and exercise the care, competence, and diligence ordinarily exercised by agents in similar circumstances. If the principal’s estate plan is known to the Agent, the Agent should also attempt to preserve that estate plan when doing so is consistent with the principal’s best interests and foreseeable financial needs.
Determining the Agents’ Powers
Oregon does not follow the Uniform Power of Attorney Act’s statutory framework for enumerated agent powers. Instead, an Agent’s authority is derived primarily from the language of the Power of Attorney itself and general principles of agency law. As a result, powers not clearly described in the document may be questioned by financial institutions or other third parties.
For that reason, the Oregon DPOA interview includes a set of “Special Powers” that allow you to explicitly grant authority for situations that commonly arise in modern estate planning and financial administration.
These powers are not included in the document unless you affirmatively select them in the interview. If selected, the authority will be stated expressly in the Durable General Power of Attorney to provide clarity for third parties and reduce the likelihood that the Agent’s authority will be challenged.
Power to Hire and Delegate to Service Providers
If selected, the Agent may hire and supervise professional service providers to assist in managing the principal’s affairs.
This includes attorneys, accountants, bookkeepers, investment advisors, property managers, and similar professionals. The Agent may delegate administrative tasks to these professionals but must continue to exercise care, competence, and diligence in selecting and monitoring them.
The Agent remains responsible for fiduciary decisions and may not delegate certain core powers such as gifting or modifications to the principal’s estate plan.
Procure and Manage Insurance Related to Personal and Family Maintenance
If selected, the Agent may manage and obtain insurance and annuity coverage on behalf of the principal and the principal's family, including specifically adding unmarried partners to the definition of "family."
This authority includes:
Maintaining or modifying existing policies
Obtaining new insurance coverage
Selecting the type and amount of coverage
Coordinating insurance coverage with the principal’s care needs
The provision also allows the Agent to coordinate with a Health Care Representative regarding payment of care expenses and insurance claims.
Expanded Powers for Trust and Estate Matters
If selected, the Agent is granted expanded authority to manage and interact with trusts, estates, and other fiduciary arrangements in which the principal has an interest. Because many of these rights arise under trust agreements, probate proceedings, or fiduciary relationships, third parties often require explicit authority in the Power of Attorney before allowing an Agent to act.
These provisions allow the Agent to act on the principal’s behalf in a variety of trust and estate contexts, including the following:
- Transfers to Trusts and Entities
The Agent may transfer the principal’s property into certain trusts or legal entities when appropriate. This includes transferring assets to a revocable trust created for the principal’s benefit, to a joint revocable trust for the principal and spouse, or to an irrevocable trust that benefits the principal during life. The Agent may also transfer out-of-state property into or out of a trust or entity to avoid ancillary probate or reduce potential tax exposure.
- Exercise of Grantor-Retained Powers
If the principal has created a trust and retained certain powers under the trust instrument, the Agent may exercise or release those powers if the trust document allows an Agent to do so. These powers may include directing administrative actions, consenting to trustee decisions, or changing trustees. The provision does not create new powers but allows the Agent to exercise powers that the principal already holds as trustor.
- Beneficiary Rights in Trusts and Estates
The Agent may represent the principal as a beneficiary of a trust or estate. This includes requesting and receiving reports and notices, objecting to fiduciary actions, consenting to proposed actions by trustees or personal representatives, and receiving distributions on the principal’s behalf under the same conditions that apply to the principal.
- Fiduciary Positions
If the principal holds fiduciary roles—such as trustee, personal representative, conservator, guardian, or corporate officer—the Agent may resign from those positions on the principal’s behalf and take steps necessary to settle accounts or discharge the principal from further responsibility.
- Agreements Affecting Trust or Estate Administration
The Agent may enter into agreements affecting the administration of a trust or estate, including settlement agreements, modifications of fiduciary arrangements, or consent to court orders, if doing so is in the principal’s best interests.
- Elective Share and Inheritance Rights
The Agent may exercise inheritance-related rights, including the ability to claim an elective share or other statutory rights arising in connection with a spouse’s estate.
- Disclaimers and Powers of Appointment
The Agent may disclaim property interests or release powers of appointment held by the principal. In deciding whether to disclaim, the Agent must consider tax consequences, government benefit eligibility, and the principal’s existing estate plan.
- Custody of Estate Planning Documents
The Agent may take custody of important documents such as wills, trusts, deeds, insurance policies, and other instruments relevant to the principal’s financial affairs.
- Coordination of Gifts with Revocable Trust Assets
If gifting authority is granted elsewhere in the document, the Agent may withdraw assets from the principal’s revocable trust—or direct the trustee to distribute assets—so that authorized gifts can be completed even when the trustee and Agent are different individuals.
Power Over Section 529 Plans
If selected, the Agent may exercise all rights related to Section 529 education savings plans owned by the principal. This includes the authority to:
Make withdrawals
Change beneficiaries
Modify account ownership
Exercise any other rights held by the account owner
This provision is intended to clarify that the Agent may act with respect to 529 plans whenever the principal is the account owner, even if the account is maintained for the benefit of another person (such as a child or grandchild).
Preserve the Principal’s Estate Plan
If selected, the Agent is granted authority to take actions necessary to preserve the principal’s estate plan if circumstances require adjustments during the principal’s financial incapability.
In exercising this authority, the Agent must act in the principal’s best interests, considering relevant factors such as:
The value and nature of the principal’s property
The principal’s foreseeable financial obligations and support needs
Tax planning considerations, including income, estate, inheritance, generation-skipping transfer, and gift taxes
The principal’s eligibility for government programs or public benefits
To accomplish these objectives, the Agent may take certain actions affecting the principal’s estate planning arrangements, including:
Creating, amending, revoking, or terminating trusts
Making gifts as otherwise authorized in the document
Creating or modifying survivorship interests or beneficiary designations
Waiving survivor benefits under retirement plans or annuities
Exercising powers of appointment held by the principal in favor of permitted appointees
Creating or modifying nonprobate transfers at death through beneficiary designations or similar instruments
Manage Donor Advised Funds
Donor-advised funds (DAFs) present a unique issue in estate planning because, once assets are contributed, they are legally owned by the sponsoring charitable organization, even though the donor retains advisory privileges regarding distributions and investments.
As a result, the donor’s authority is often governed primarily by the account agreement with the sponsoring institution, not by general financial powers under a power of attorney. Without express authority in the document, an Agent may face resistance from the sponsoring organization when attempting to act on the donor’s behalf.
If selected, this provision authorizes the Agent to exercise all rights the principal holds as the donor or account advisor of a donor-advised fund, including:
Directing charitable distributions
Providing investment recommendations where permitted
Appointing successor account advisors
Taking other actions permitted under the governing account agreement
Manage Family Business Interests
If selected, the Agent may manage the principal’s interests in closely-held businesses.
This authority includes the ability to:
Vote ownership interests
Participate in management decisions
Continue, reorganize, sell, or liquidate the business
If permitted by the governing documents of the business, the Agent may also succeed to the principal’s fiduciary or officer position and later resign from that role if appropriate.
The document also addresses situations where the Agent has an ownership interest in the same business, allowing the Agent to continue serving despite that potential conflict of interest as long as the Agent acts in good faith.
Gifting Powers
Under Oregon law, an Agent’s authority to make gifts must be expressly granted in the Power of Attorney. If gifting authority is not clearly described, financial institutions or other third parties may refuse to recognize the Agent’s ability to transfer property as a gift.
The Agile EP Oregon DPOA therefore allows you to determine whether the Agent may make gifts and, if so, the scope of that authority. When exercising this authority, the Agent must act in the principal’s best interests, considering relevant factors such as:
The value and nature of the principal’s property
The principal’s foreseeable financial obligations and support needs
Tax planning considerations, including income, estate, gift, and generation-skipping transfer taxes
Eligibility for public benefits or assistance programs
The principal’s history or pattern of making gifts
The gifting provisions also allow the Agent to respond to Medicaid or long-term care planning needs, including making transfers intended to preserve eligibility for governmental medical assistance or reduce the risk of estate recovery, when consistent with the principal’s best interests and estate planning objectives.
In many estate plans, assets are held in a revocable trust rather than in the principal’s individual name. The document therefore allows the Agent to withdraw assets from the principal’s revocable trust or direct the trustee to make distributions in order to complete authorized gifts. This coordination ensures that gifting authority can still be exercised even when the trustee and Agent are different individuals.
You must select one gifting option, which determines the scope of the Agent’s authority.
Gifts Limited to the Annual Exclusion
If selected, the Agent may make gifts up to the federal annual gift tax exclusion amount to individuals or entities.
This option allows the Agent to continue routine annual gifting practices while limiting the size of transfers that may be made without further authorization.
Gifts Limited to the Annual Exclusion Except When Needed for Medicaid Planning
If selected, the Agent’s gifting authority generally follows the annual exclusion limit, but the Agent may exceed that amount when reasonably necessary for Medicaid or long-term care planning. This option provides flexibility if larger transfers are required to protect eligibility for governmental medical assistance or similar programs.
Gifts to Any Donee in Any Amount, If Consistent with the Estate Plan
This option grants the broadest gifting authority.
If selected, the Agent may make gifts to any donee in any amount, provided the gifts are consistent with the principal’s estate plan, known gifting practices, or intended distribution plan. This allows the Agent to continue an established gifting strategy or take actions necessary to preserve the principal’s overall estate planning objectives.
All gifts made under this authority remain subject to the Agent’s fiduciary duties, including the obligation to act in good faith and in the principal’s best interests.
Powers Included Automatically In the DPOA
Certain provisions are always included in the Durable General Power of Attorney and do not appear as selectable options in the interview. These provisions are included automatically in the final document unless the form itself is revised.
Some of these provisions are simple administrative powers that help the Agent act effectively, such as:
- Claims and Litigation
The Agent may assert, defend, settle, and otherwise manage claims and litigation on the principal’s behalf.
- Government Programs and Benefits
The Agent may apply for, maintain, change, or appeal government benefits and assistance programs, including Social Security, Medicare, Medicaid, and veterans’ benefits.
- Retirement Benefits
The Agent may manage retirement benefits and deferred compensation, including payment elections, rollovers, investments, and related transactions.
- Tax Matters
The Agent may handle state and federal tax matters, including signing returns, receiving information, making elections, and dealing with taxing authorities.
- Post Office Authority
The Agent may deal with the United States Postal Service on the principal’s behalf, including mail forwarding, hold-mail requests, and change-of-address orders.
- Accounting Obligations
The Agent may be required to provide an accounting if requested by the principal or certain other fiduciaries.
- Successor Agent Protections
A successor Agent is generally not liable for the acts of a prior Agent unless the successor participated in or concealed a breach.
- Guardian and Conservator Nominations
The document includes the principal’s nomination of the Agent to serve as conservator or guardian if a court proceeding later becomes necessary.
- Access to Medical and Other Confidential Information
The Agent may access medical and other confidential information when needed to act under the document, including to determine financial incapability.
- Compensation and Reimbursement
The Agent is entitled to reasonable compensation and reimbursement for properly incurred expenses.
- Revocation, Termination, and Third-Party Reliance
The document addresses revocation, termination, and when third parties may rely on the Agent’s authority.
Others address higher-risk areas where the document is designed to provide added clarity, protection, or limitation.
Digital Asset Authority
The Agent is granted broad authority over the principal’s digital assets and electronic communications. This includes the ability to access, manage, transfer, and control digital accounts and content; recover or reset passwords; decrypt electronically stored information; and coordinate with custodians or trustees regarding digital property.
This authority is drafted to comply with applicable federal and state privacy and digital access laws, including laws governing access to electronic communications and digital property.
Restrictions Over Foreign Assets
The Agent is not granted authority over certain foreign financial assets unless the Agent affirmatively assumes that authority in writing.
This limitation applies to assets such as passive foreign investment companies and foreign financial accounts. The provision is designed to prevent the Agent from inadvertently becoming subject to complex reporting obligations under federal law, including FBAR (Foreign Bank Account Report) requirements and related penalties.
Limitations on Self-Dealing and Gifts to the Agent
The document places limits on an Agent’s ability to make gifts to themselves or confer personal benefits.
Unless otherwise permitted for the Agent’s health, education, support, or maintenance, the Agent may not transfer assets to themselves without additional review. If a transfer to the Agent is otherwise authorized, a co-agent must review and approve the action.
This structure helps reduce potential conflicts of interest and avoids unintended tax consequences, such as the creation of a general power of appointment.
Authority to Make Health Care Decisions for Minor Children
If the client has minor children, the Health Care Choices tab asks whether the named Health Care Representative should also have authority to make health care decisions for the children. This authority applies only if both parents are unable to communicate decisions or exercise custody. It does not override the rights of a capable parent.
The options include:
- Authorize the same Health Care Representative
If selected, the Advance Directive will include language granting the named agent authority to consent to or refuse medical treatment for the client’s minor children in those limited circumstances. - Name a different Agent for the child
If selected, the document will appoint a separate person solely for purposes of making health care decisions for the minor children if both parents are unable to act.
This selection allows the client to decide whether continuity or separation of decision-making is most appropriate for their family structure.