Using a power of attorney, you can appoint a trusted individual to act on your behalf if you are unable to. While powers of attorney are often associated with death or in the event of incapacitation, there are many uses. For example, someone may give power of attorney to their lawyer during a real estate closing, in their absence. However, more commonly, people appoint powers of attorney to make medical decisions and take care of financial matters, if they are not able to do so for themselves.
Powers of attorney come in various forms. They can be generalized, or very detailed. Among the different types, there are two common designations: Springing and Durable.
Springing vs Durable
The responsibilities of these roles are very similar. However, the main difference is when they go into effect. A durable power of attorney becomes effective immediately upon creating the document and remains effective if you were to become incapacitated. The person you appoint does have the legal authority to make decisions on your behalf, even if you are capable. In comparison, a springing power of attorney does not go into effect when the document is created. Instead, it “springs” into effect upon a designated event defined in the power of attorney. Most commonly the designated event is that you are incapacitated or in a vegetative or comatose state. Using this example, a springing power of attorney would not have any decision-making power until you are deemed incapacitated.
The Problems with Springing a POA
The greatest concern that typically comes with a durable power of attorney is the fear of the agent take abusing the situation and making decisions on their behalf when it is not necessary. To counter this concern, if you have any doubt about an individual, you should not appoint them as your agent. You should only appoint an agent whom you fully trust. If you carefully choose someone who will respect your wishes and act with only your best interest in mind, then this concern is minimal at most. However, there are two main legitimate concerns that come with a springing power of attorney regarding incapacitation.
If the power of attorney states that you must be incapacitated for it to go into effect, you must be deemed incapacitated. The problem arises when you ask what defines “incapacitated” and who deems you as such. When it comes time for determining this, your provider will have to agree that you meet the defining terms. This can be a grey area. Your lawyer and agent may believe that you no longer have the capacity to manage your finances or make medical decisions, but your doctor may disagree. Additionally, problems may arise if you are not fully incapacitated by definition but are unable to effectively manage your finances or medical care.
Instead of utilizing the power of attorney immediately as the need arises, you must be determined as incapacitated first. This means that someone, typically a doctor, must deem you as such. Depending on the circumstance, this can take days or even weeks. When it comes to financial matters and decisions that can directly affect your well-being, time is of the essence.
Opting for a Durable Power of Attorney
The concerns that come with a springing power of attorney can all be avoided by opting for a durable power of attorney. Seeing that a durable power of attorney goes into effect immediately, there is no need to wait for or have a doctor define your condition. All matters can immediately be handled.
Trust is a basic requirement when appointing a power of attorney of any kind. Even with someone you trust, it is important that your durable agent understands how and when to exactly use the document. An experienced elder law attorney can also help you draft a power of attorney that is tailored to your specific concerns and needs. This article offers a summary of aspects of estate planning law. It is not legal advice and does not create an attorney-client relationship. For legal advice, contact us today at 505-830-0202.