Springing vs. Durable Power of Attorney

A power of attorney is a legal document that gives the person named authority to act on your behalf. This person is sometimes referred to as your attorney in fact. You can specify as much or as little as you want in a power of attorney. Generally, there are two types of powers of attorney that people commonly use in their estate planning.

A durable power of attorney is one that can be used at any time by the person who holds it. A springing power of attorney only comes into legal effect when you have been certified by one or more doctors as incapable of making your own legal and financial decisions.

Though it feels like a bigger risk giving a durable power of attorney than a springing one, most estate planning lawyers recommend the durable power of attorney. Below are a few of the reasons why.

Lack of Clarity in a Springing Power of Attorney

In a springing power of attorney, you will have to define the incapacity that triggers the springing POA. But how do you define incapacity? If capacity is simply the mental capacity to make a will, you could be well beyond the ability to manage your own financial affairs but not yet incapacitated.

If you are literally unconscious, your lack of capacity will be relatively clear. It may not be clear, however, how long that state has to last to trigger the springing power of attorney.

Uncertainty over these things and more can cause conflict in your family and confusion and distraction for your medical care providers.

Need for Court Approval of a Springing Power of Attorney

If your doctors are hesitant to share information with your family members because of privacy laws, your family may have difficulty getting the certification required to trigger the POA. In that case, they may have to go to Probate Court to get a court order implementing the POA. This will involve what is most likely unnecessary expense and delay.

Recognition of a Springing Power of Attorney

Banks and financial institutions easily recognize a durable power of attorney document. When presented with a springing power of attorney, however, they may have a duty to ask more questions. For example, they may want to see the evidence that the POA was triggered. This too can make it difficult for the person you identify to actually manage your financial affairs.

How to Protect Yourself With a Durable Power of Attorney

With all of that said, it is true that giving someone a durable power of attorney gives them complete authority. You likely do not want them using this authority until it is needed.

The first thing you should do to protect yourself is to name someone you trust absolutely. For many families this is either a spouse or an adult child, but there may be other people in your life that you think could better handle this responsibility.

The second is to control access to the document itself. You do not have to physically give the power of attorney document to the person you named. You can store it in a safe and secure place where you would know if someone accessed it.

An example is a safe in a private room in your home. You can let the person know where to find it if needed. You can also give another trusted individual that information and instruct your POA to contact that person if the document is needed.

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