Durable Power of Attorney vs. Form 2848
Issued by IRS | May 2025 | Issue Number: 2025-5
🔍 Why This Matters
Most people know about Form 2848, the IRS form used to appoint someone to represent them in tax matters. But what if you’re no longer able to sign it due to illness or mental incapacity?Enter the Durable Power of Attorney (DPOA) – a powerful legal tool that, when properly prepared, can serve as a bridge when Form 2848 can’t be signed.
👥 What Is a Durable Power of Attorney?
A Durable Power of Attorney allows you (the principal) to authorize someone else (your agent or attorney-in-fact) to make decisions on your behalf, including:
- 🏥 Healthcare
- 💰 Financial matters
- 🧾 Tax representation
“Durable” means it remains effective even if you become mentally or physically incapable of making decisions.🧠 Incapacity: Legally defined as the lack of ability to understand decisions or the consequences of actions.
(See Black’s Law Dictionary, 12th ed., 2024)
⚖️ IRS Representation Rules
Typically, the IRS requires:
- ✅ A signed Form 2848,
- 🧑⚖️ The representative must be a licensed attorney, CPA, or enrolled agent,
- ✍️ Signed by the taxpayer themselves.
But if you’re incapacitated, you can’t sign Form 2848 — so your DPOA must step in.
🛠️ How to Use a DPOA for IRS Matters
✅ Step 1: Draft the DPOA before incapacity
Include specific or broad powers to act on federal tax matters.
⚠️ Most general DPOAs do not automatically authorize tax representation.
✅ Step 2: Ensure Your DPOA Contains:
- 📄 A reference to federal tax matters
- 💼 Powers to act on any and all matters you could handle
- 🧾 (Ideally) mentions of IRS forms or periods
Example:
“My agent may file federal, state, or local tax returns, respond to tax notices, and represent me before the IRS.”
📝 Still Need Form 2848? Yes!
Even with a valid DPOA, your agent must also:
- Fill out and sign Form 2848 on your behalf
- Include:
- 🧾 Type of tax (e.g., income, gift)
- 📅 Tax year(s) involved
- 📋 IRS Form numbers (e.g., 1040, 709, 8857)
🔍 See IRS Publication 216 and 26 CFR § 601.503(b) for required details
🚫 What Happens if Your DPOA is Incomplete?
If your DPOA doesn’t clearly allow tax representation:
- ❌ IRS may reject it
- 🏛️ Your agent might need to go to court
- 📄 A guardian or fiduciary could be appointed
- 📑 Your representative would then file Form 56, informing the IRS of the fiduciary relationship
📌 Key Forms and Resources
| 📂 Document | 🔗 Description |
| Form 2848 | Power of Attorney for IRS representation |
| Form 56 | Notify IRS of fiduciary role |
| Publication 216 | IRS Conference and Practice Rules |
| National Taxpayer Advocate Blog | When and how to use a DPOA |
| IRS Office of Professional Responsibility | Rules for IRS representation |
📋 Legal Notes
“A person must be mentally competent at the time a power of attorney is created.”
— Stephan v. Millennium Nursing & Rehab Ctr., Inc., 2018
Even if your DPOA uses broad terms like “any and all tax matters,” it must be backed by a properly completed Form 2848 for IRS purposes.
🏛️ State Example: Georgia
The Statutory Power of Attorney form under Georgia law includes a checkbox for:
- ✅ Taxes (can be federal, state, or local)
- 🗂️ Other financial powers
However, IRS requires more detail, such as:
- Specific tax years (e.g., 2022–2023)
- Specific tax forms (e.g., 1040, 709)
✅ Final Recommendations for Businesses & Families
- 🧑💼 Business owners: Make sure your DPOA includes tax powers
- 👵 Elder care planners: Draft early, review for IRS compliance
- 👨👩👧 Families: Revisit POA documents before signs of incapacity arise
✔️ Proactive planning ensures your affairs are in order when you can no longer manage them.
