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Durable Power of Attorney vs. Springing Power of Attorney

A power of attorney (POA) in general is a legal document that allows someone else to speak and act on your behalf. You give a power of attorney to someone who is then called an attorney-in-fact (as oppose to an attorney-at-law who are lawyers). The uses of a POA are many. Some people give POAs to their lawyers so that they do not have to be present for real estate closings when buying a house for example. You can give a POA to someone to act on your behalf at a bank or any other institution. A POA can be drafted as broad or as limited as you would like it to be.

Durable Power of Attorney

Many people know of POAs but are confused about the different types and their uses. As part of a comprehensive estate plan for anyone over the age of 18, I recommend a Durable POA as oppose to a Springing POA. A Durable POA is exactly as the name says. It is durable which means that it becomes effective immediately upon you creating the document and survives and stays effective even if you were to become incapacitated. This is very useful when planning for incapacity. While you are healthy and of sound mind, you can chose any person that you trust to serve as your attorney-in-fact in the event that you become incapacitated (either a coma or vegetative state). A Springing POA on the other hand does not become effective when you create the document. Rather, it “springs” to life only upon a certain event that’s designated in the POA, most often, it is your incapacity. So in theory, if you were to be in a coma or in a vegetative state, your attorney-in-fact will then, and only then, have the power to speak and act on your behalf.

Springing Power of Attorney

Many people ask me about Springing POAs and why I don’t recommend them. They’re mostly afraid that if they create a Durable POA, their attorney-in-fact will abuse the privilege and use it inappropriately even when they’re not incapacitated. First and foremost, you should only appoint an attorney-in-fact that you trust wholeheartedly with your life. If you have any doubts about a person, then that person should not be appointed your attorney-in-fact for any situation. Once your attorney-in-fact does something in your name, it is your responsibility and your name that attaches to that event. Secondly, a Durable POA is always effective, which means that upon your incapacity, there needn’t be any question whether the POA is effective upon your incapacity because it is always effective. A springing POA usually springs to life only upon incapacity which begs the question, who decides when you’re incapacitated? There are provisions you can put in the POA to say that your incapacity must be certified by two or more doctors, but then it places the burden on your doctors and some either will not certify it fearing a violation of HIPAA or get wrapped up in your finances without a court order. This leads to your appointed attorney-in-fact to go to the courts in order to be allowed to use the POA. In an emergency, this defeats the whole purpose of having a POA.

Ultimately, I recommend and prefer the Durable POA over the Springing POA. The issue still remains for some people with their concern that they do not want someone to be able to speak on their behalf while they have capacity. In that case, I recommend that you execute the Durable POA but simply not hand one over to your designated attorney-in-fact. Simply let your attorney-in-fact know where it is placed in your house, allow them access to your house, and tell them that if you were to become incapacitated to fetch it and use it. Never store your POA in a safe deposit box because a bank will not allow another person to enter a safe deposit box without a POA, the very instrument that’s hidden inside the box. Keep the POA in a safe place that’s within your control and that should solve both the issue of having a POA that will work when it’s suppose to and not giving your attorney-in-fact the power to act on your behalf while you still have capacity.

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