Mississippi Durable Power of Attorney
A Mississippi durable power of attorney is durable only if it expressly says it survives your incapacity under Miss. Code 87-3-105; no statutory witness rule.
Introduction
A durable power of attorney is a written document in which you appoint a person you trust, called your agent or attorney-in-fact, to handle your finances, property, and business affairs. What makes it durable is straightforward: the agent's authority continues even after you lose the ability to make your own decisions. A power of attorney without that feature lapses the moment you become incapacitated, which defeats the reason most people sign one. Here Mississippi is an outlier. It never enacted the 2006 Uniform Power of Attorney Act, and a 2013 bill to adopt it, House Bill 468, died in committee, so financial powers of attorney are still governed by the older Uniform Durable Power of Attorney Act, Miss. Code Ann. 87-3-101 through 87-3-113. The practical result is that Mississippi will not treat your power of attorney as durable on its own. Miss. Code Ann. Section 87-3-105 makes durability depend on the words you choose, so the writing must state, for example, that the agent's authority is not affected by your later disability or incapacity. Nothing in the act requires witnesses or a notary for the document to be valid between you and your agent, yet you will still want it notarized, because a chancery clerk will not record it and most banks will not honor it otherwise. Mississippi issues no fill-in statutory form. This page covers only the financial or general durable power of attorney; naming someone to make medical decisions calls for a separate Mississippi health-care instrument. Attorney review is available as an option before you sign.
Key Things to Know
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A durable power of attorney lets someone act in your place. You name an agent, also called an attorney-in-fact, to manage your money, property, and business dealings. Durable means the document stays in force even after you can no longer make decisions, which is normally the entire reason for signing one.
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Mississippi kept the older uniform act. Financial powers of attorney run under the Uniform Durable Power of Attorney Act, Miss. Code Ann. 87-3-101 through 87-3-113. The state passed on the 2006 Uniform Power of Attorney Act; a 2013 measure to adopt it, House Bill 468, died in committee, so Mississippi's rules read differently from many nearby states.
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Durability is not automatic in Mississippi. The state will not assume your document survives your incapacity. Miss. Code Ann. Section 87-3-105 ties durability to language, so the writing has to spell out that the agent's authority continues despite your later disability or incapacity. Omit those words and the authority ends the day you lose capacity.
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The act sets no witness or notary rule. For validity between you and your agent, the statute demands neither witnesses nor a notary. Notarization still matters in practice: it is what allows a chancery clerk to record the document and what banks and other institutions usually expect before they will act on it.
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There is no state form to copy. Because the act publishes no fill-in template, a Mississippi power of attorney is written around your own circumstances rather than pulled from a government form.
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The writing defines the agent's reach. Mississippi's act lists no separate special powers that must be granted one by one, so what your agent may do is read from the four corners of the document. If you want the agent to make gifts or take other specific steps, say so in plain terms.
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Real-estate use triggers recording. A power of attorney used to convey or mortgage land must be acknowledged and recorded with the chancery clerk in the county where the property sits, and under Miss. Code Ann. Section 87-3-113 the attorney-in-fact's authenticated affidavit is recordable as well.
Key decisions before you file
Before you file a Durable Power of Attorney in Mississippi, 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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Mississippi Requirements for Durable Power of Attorney
Under Mississippi's Uniform Durable Power of Attorney Act, Miss. Code 87-3-101 through 87-3-113, the current act sets no statutory witness requirement and no statutory notarization requirement for validity between the parties. A signature is governed by Mississippi's general acknowledgment and conveyance law rather than by the power of attorney act itself.
Although the act sets no notarization requirement for validity, notarization is needed in practice before the document can be recorded with a chancery clerk and is commonly required by banks and other institutions, so most Mississippi powers of attorney are notarized.
Mississippi does not make a power of attorney durable by default. Under Miss. Code 87-3-105 the document is durable only if it contains express words showing the agent's authority survives your subsequent disability or incapacity, such as that the power is not affected by that disability or incapacity. Without that language, the authority ends when you lose capacity.
If you want the power of attorney to take effect only on a future event such as your incapacity, Miss. Code 87-3-105 recognizes a springing power that becomes effective on the principal's disability or incapacity. The act supplies no mechanism for determining incapacity, so the document should specify the triggering event and how it is established.
Mississippi's current act publishes no statutory form for a financial power of attorney, so the document is drafted to your situation rather than copied from a state-issued template. The agent's authority is defined by the four corners of the document and by common-law agency principles.
A power of attorney used to convey or mortgage real estate must be acknowledged and recorded in the chancery clerk's office of the county where the property is located. Under Miss. Code 87-3-113, the attorney-in-fact's authenticated affidavit is likewise recordable when exercising the power requires a recordable instrument.
Mississippi's current act has no codified list of special powers, sometimes called hot powers, that must be separately granted. The agent's authority is defined by the four corners of the document and by common-law agency principles, so authority such as making gifts should be stated clearly.
Mississippi's act sets no single revocation procedure; in practice the principal revokes by a signed writing and by giving actual notice to the agent and third parties. Under Miss. Code 87-3-111, a person who acts in good faith without actual knowledge of a revocation, death, or incapacity is protected. If the power of attorney was recorded, record the revocation in the same chancery clerk's office.
Frequently Asked Questions
A durable power of attorney is a written 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 the agent's authority can continue even after you become incapacitated. In Mississippi that continuation is not automatic: under Miss. Code Ann. Section 87-3-105 the document is durable only when it contains express words saying the authority survives your disability or incapacity.
The dividing line is what happens when you lose capacity. A durable power of attorney includes express words that the agent's authority survives your incapacity, which Miss. Code Ann. Section 87-3-105 requires. A regular, nondurable power of attorney has no such words, so the agent's authority ends the moment you can no longer make decisions. Mississippi reads a power of attorney as nondurable unless that durability language is present.
No. Most states replaced their older statutes with the 2006 Uniform Power of Attorney Act, but Mississippi did not. A 2013 bill to adopt it, House Bill 468, died in committee and never became law. Financial powers of attorney in Mississippi are still governed by the older Uniform Durable Power of Attorney Act, Miss. Code Ann. 87-3-101 through 87-3-113, which is why the state lacks the statutory form, the codified list of special powers, and the standalone agent-duties section that Uniform Power of Attorney Act states have.
Yes, when the power of attorney is durable. Miss. Code Ann. Section 87-3-107 provides that acts your attorney-in-fact takes under a durable power of attorney during your disability or incapacity bind you and your successors in interest, the same as if you had capacity when the acts were done. That is the core benefit of making the document durable in the first place.
Mississippi's act does not lay out one step-by-step revocation procedure. Revocation follows common-law agency rules together with Miss. Code Ann. Section 87-3-111, which shields an agent or third party who acts in good faith without actual knowledge of a revocation, death, or incapacity. As a practical matter you revoke by a signed writing and by giving actual notice to the agent and to anyone relying on the document. If the power of attorney was recorded, file the revocation with the same chancery clerk.
Yes, when it will be used to convey or mortgage real estate. Such a power of attorney must be acknowledged and recorded in the chancery clerk's office for the county where the land is located, and Mississippi chancery clerks list powers of attorney among the instruments they record. Under Miss. Code Ann. Section 87-3-113, an affidavit by the attorney-in-fact, once authenticated for record, is recordable too when exercising the power calls for a recordable instrument.
No. A power of attorney can be signed only by a principal who still understands and can authorize it. If your parent is already incapacitated and cannot knowingly sign, a power of attorney is off the table. The family's route is to petition the chancery court for a conservatorship or guardianship so the court can appoint someone to manage the parent's affairs.