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Indiana Durable Power of Attorney

An Indiana durable power of attorney signed on or after July 1, 2024 must be signed before a notary public or at least two witnesses under IC 30-5-4-1.5. It is durable by default.

Introduction

A durable power of attorney is a legal document that lets you name someone you trust to manage your money, property, and business matters if you cannot handle them yourself. In Indiana that person is called your agent, or attorney in fact. The word durable is the key: a durable power of attorney keeps working even if you later become incapacitated and can no longer make decisions, which is usually the whole reason people create one. A power of attorney that is not durable ends the moment you lose that capacity. Indiana is unusual here: under Ind. Code 30-5-10-3 a power of attorney is durable by default, meaning it is not terminated by your incapacity unless the document says otherwise, so there are no durability magic words to add. To be valid under Ind. Code 30-5-4-1, the document must be in writing, name an attorney in fact, give that person power to act for you, and be signed by you or at your direction. For a power of attorney signed on or after July 1, 2024, Ind. Code 30-5-4-1.5 lets you sign either in the presence of a notary public or in the presence of at least two witnesses; the two methods are alternatives, not both. Indiana does not publish a single mandatory fill-in form; instead Ind. Code 30-5-5 lets the drafter incorporate categories of powers by reference. This guide covers the financial and general durable power of attorney only. A health-care representative appointment is a separate Indiana instrument. Attorney review is available as an option before you sign.

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Key Things to Know

  1. 1

    A durable power of attorney lets someone act for you. It names an agent, also called your attorney in fact, to handle your money, property, and business matters. Durable means the document keeps working even if you later become incapacitated, which is usually why people set one up.

  2. 2

    Indiana is durable by default. Under Ind. Code 30-5-10-3 an Indiana power of attorney is not terminated by your incapacity unless the document states otherwise. There are no durability magic words to add; if you do not want the agent's authority to survive your incapacity, you must opt out expressly.

  3. 3

    You choose notary OR two witnesses. For a power of attorney signed on or after July 1, 2024, Ind. Code 30-5-4-1.5 lets you sign either in the presence of a notary public or in the presence of at least two witnesses. The two methods are alternatives, a change made by the 2024 amendments.

  4. 4

    An interested witness can void the document. Under Ind. Code 30-5-4-1.3 a witness must be competent to be a witness in Indiana, and a witness who is interested, meaning named as attorney in fact, taking a benefit, or related to such a person, can void the power of attorney where it cannot be proved without that witness.

  5. 5

    Indiana has no mandatory fill-in form. Instead of one statutory short form, Ind. Code 30-5-5 supplies descriptive language for categories of powers. Under Ind. Code 30-5-5-1 a power is granted only if your document refers to that language or cites the section, so the drafter incorporates powers by reference.

  6. 6

    Some powers must be incorporated, and some are barred. Powers such as banking, real property, and gift-making under Ind. Code Section 30-5-5-9 are not implied and must be incorporated by reference or citation. Under Ind. Code 30-5-5-15 your agent may not make or change your will.

  7. 7

    Real-property use means recording first. An agent may generally act without recording the power of attorney, but under Ind. Code 30-5-3-3 must record it with the county recorder before presenting for recording any document, such as a deed, that itself must be recorded.

Key decisions before you file

Before you file a Durable Power of Attorney in Indiana, a few decisions shape the document: which option to choose and what each one means. The Durable Power of Attorney guide walks through them.

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INDIANA DURABLE POWER OF ATTORNEY

NOTICE: This is an important legal document. It gives the person you name as your agent broad authority over your money and property. Under Indiana Code Section 30-5-10-3, an Indiana power of attorney is durable by default, so your agent's authority continues even if you later become incapacitated unless this document says otherwise. You may revoke it at any time while you have capacity. Read it carefully before you sign.

  1. DESIGNATION OF AGENT I, [PRINCIPAL NAME], of [CITY], Indiana, appoint [AGENT NAME] of [CITY], Indiana, as my agent (attorney in fact) to act for me in the matters set out below. If my agent cannot serve, I appoint [SUCCESSOR AGENT NAME] as successor agent.

  2. DURABILITY (Ind. Code Section 30-5-10-3) This power of attorney is durable. Indiana makes a power of attorney durable by default: it is not terminated by my incapacity unless I state otherwise. My agent's authority therefore continues if I become incapacitated. [ ] If instead I do NOT want this power to survive my incapacity, I opt out expressly here.

  3. WHEN IT TAKES EFFECT [ ] Effective immediately upon signing. [ ] Springing: effective only on a future date or event, such as my incapacity, as provided in Ind. Code Section 30-5-4-2, with incapacity confirmed in writing by a physician, licensed psychologist, or judge where no one is named to decide.

  4. GRANT OF AUTHORITY I grant my agent authority over the financial and property matters I incorporate here. Under Ind. Code Section 30-5-5-1 a power is granted only if this document refers to the descriptive language of the relevant section or cites that section, so powers such as banking, real property, and gift-making under Section 30-5-5-9 are not implied and must be incorporated: [list or cite the sections you grant]. My agent may not make or change my will (Ind. Code Section 30-5-5-15).

  5. EXECUTION (Ind. Code Sections 30-5-4-1, 30-5-4-1.5) For a power of attorney signed on or after July 1, 2024, this document is valid when it is signed by me or at my direction and either signed in the presence of a notary public or signed in the presence of at least two witnesses. Under Ind. Code Section 30-5-4-1.3 an interested witness can void the document where it cannot be proved without that witness.

Dated: [DATE]

[PRINCIPAL NAME], Principal

NOTARY ACKNOWLEDGMENT State of Indiana, County of [COUNTY]. On [DATE], before me, [NOTARY NAME], Notary Public, personally appeared [PRINCIPAL NAME], who acknowledged that they executed this power of attorney.

Notary Public

OR TWO WITNESSES (required only if the document is not notarized) Witness 1: _____________________ Witness 2: _____________________

Note: Indiana does not publish a single mandatory fill-in form; instead Ind. Code 30-5-5 supplies descriptive language for categories of powers that you incorporate by reference or by citing the section number. A power of attorney used to record a real-property instrument such as a deed must first be recorded with the county recorder under Ind. Code Section 30-5-3-3. This is an Indiana skeleton for a financial or general durable power of attorney; a health-care representative appointment is a separate Indiana instrument. For the complete, customizable template, see the full Durable Power of Attorney template.

Indiana Requirements for Durable Power of Attorney

Notarize or Sign Before Two Witnesses

Under Ind. Code 30-5-4-1 the power of attorney must be in writing, name an attorney in fact, give that person power to act, and be signed by you or at your direction. For a document signed on or after July 1, 2024, Ind. Code 30-5-4-1.5 lets you sign either in the presence of a notary public or in the presence of at least two witnesses. The two methods are alternatives.

Interested Witnesses Can Void the Document

Under Ind. Code 30-5-4-1.3, any person competent to be a witness in Indiana may witness the signing, but a witness who is interested, meaning named as attorney in fact, taking a benefit, or related to such a person, can void the power of attorney where it cannot be proved without that witness. Notarizing instead avoids this risk.

Durable by Default (Opt Out Expressly)

Indiana makes a power of attorney durable by default. Under Ind. Code 30-5-10-3 it is not terminated by your incapacity unless the document states otherwise, so there are no durability magic words to add. If you do not want the agent's authority to survive your incapacity, you must opt out expressly in the document.

Springing Effective Date (Optional)

If you want the power of attorney to take effect only on a future date or event such as your incapacity, Ind. Code 30-5-4-2 permits a springing power of attorney. Where effectiveness turns on incapacity and no one is named in the document to decide, a physician, licensed psychologist, or judge makes the written determination.

No Mandatory Statutory Form

Indiana does not publish a single mandatory fill-in power of attorney form. Under Ind. Code 30-5-5-1 a listed power is granted only if the document refers to the descriptive language of the relevant section or cites that section, so the drafter incorporates categories of powers by reference. It covers financial and property matters; a health-care representative appointment is a separate Indiana instrument.

Record It for Real-Property Use

An agent may generally act without recording the power of attorney. But under Ind. Code 30-5-3-3, the agent must record the power of attorney with the county recorder before presenting for recording any document that itself must be recorded, such as a deed or other real-property conveyance.

Special Powers Need Express Incorporation

Certain powers are not implied and must be incorporated. Under Ind. Code 30-5-5-1 powers such as banking, real property, and gift-making under Section 30-5-5-9 are granted only if the document refers to the section's descriptive language or cites the section. Under Ind. Code 30-5-5-15 the agent may not make or change your will.

Revocation by Written Instrument

Under Ind. Code 30-5-10-1 you revoke only by a signed written instrument that identifies the power of attorney being revoked. The revocation is not effective until the agent or other relying person has actual knowledge of it. If the power of attorney was recorded, the revocation must also be recorded and reference where the original is recorded.

Frequently Asked Questions

A durable power of attorney is a legal document that lets you name an agent, also called an attorney in fact, to manage your financial and property matters. It is called durable because it keeps working even if you later become incapacitated, rather than ending when you lose the capacity to make decisions. Under Ind. Code 30-5-10-3, an Indiana power of attorney is durable by default unless the document says otherwise.

The difference is what happens if you become incapacitated. A durable power of attorney keeps the agent's authority in force after you lose capacity; a regular, nondurable one ends at that point. Indiana handles this by default: under Ind. Code 30-5-10-3 a power of attorney is not terminated by your incapacity unless the document states otherwise. So in Indiana a power of attorney is durable unless you expressly opt out, which is the reverse of states that require special durability language.

Not always, for documents signed on or after July 1, 2024. Under Ind. Code 30-5-4-1.5 you may sign either in the presence of a notary public or in the presence of at least two witnesses, and the two methods are alternatives. Notarization is often still requested in practice because banks and county recorders commonly want it before they will honor or record the document.

A springing power of attorney takes effect later rather than right away. Under Ind. Code 30-5-4-2, an Indiana power of attorney may specify a future effective date or become effective upon the occurrence of an event. Where effectiveness depends on the principal's incapacity and no one is named in the document to determine it, the power of attorney becomes effective upon a written determination of incapacity by a physician, licensed psychologist, or judge.

Under Ind. Code 30-5-5-1, an agent has a listed power only if the document incorporates it by referring to the descriptive language in the relevant section or by citing that section. Powers like banking, real property, and gift-making under Ind. Code Section 30-5-5-9 are not implied; they must be incorporated. Under Ind. Code 30-5-5-15 the agent may not make or change the principal's will.

An attorney in fact may generally act without recording the power of attorney. But under Ind. Code 30-5-3-3, the agent must record the power of attorney with the county recorder before presenting for recording any document that itself must be recorded, such as a deed or other real-property conveyance. So a power of attorney used to record a real-estate instrument must be recorded with the county recorder first.

Under Ind. Code 30-5-10-1, you revoke only by a written instrument of revocation that identifies the power of attorney being revoked and is signed by you. The revocation is not effective until the attorney in fact or other relying person has actual knowledge of it. If the original power of attorney was recorded, the revocation must also be recorded and reference the book and page or instrument number where the original is recorded.

No. A health-care representative appointment in Indiana is a separate instrument with its own rules, distinct from the financial power of attorney under Ind. Code 30-5 described in this guide. The financial power of attorney covered here authorizes money, property, and business matters and does not by itself authorize health-care decisions. Use the correct Indiana instrument for the authority you want to grant.