The Durable Power of Attorney

A durable power of attorney becomes effective upon its signing and execution. It remains in effect indefinitely, even if the principal becomes incapacitated due to old age, illness, or injury.

The Non-Durable Power of Attorney

A non-durable power of attorney also becomes effective upon its signing and execution. However, unlike the durable power of attorney, it expires when the principal is incapacitated.

The Springing Power of Attorney

The springing power of attorney is conditional. Unlike other powers of attorney, it does not take effect upon signing. Instead, the springing power of attorney—for finances, for health care, or for any other purpose—can only be engaged when there is a medically verifiable finding of physical or mental incapacity.

The Disadvantages of the Springing Power of Attorney

The springing power of attorney can help prevent abuse of finances, real property, and other estate assets. However, it has several distinct downsides. These disadvantages include:

The Possibility of Delay

Your attorney-in-fact can only exercise their authority after obtaining a “determination” of incapacity. Since obtaining such a determination can take days—sometimes even weeks—it can delay the payment of bills or the authorization of critical health services.

Privacy Issues

Your agent may need to provide compelling evidence that they are authorized to access your medical records and other health information. Even with the right paperwork, it can be difficult to convince hospital administration to risk sharing patient information with another party.

Legal Obstacles

If a springing power of attorney is contingent on your incapacity, the springing power of attorney document must include a detailed definition of “incapacity.” This can prove incredibly challenging, as many health conditions that are not necessarily incapacitating can make it much more difficult for an older adult or accident victim to make key decisions about their health and wealth.

Philip J. Kavesh
Nationally recognized attorney helping clients with customized estate planning guidance for over 40 years.
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