Indiana Durable Power of Attorney

Introduction

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.

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.