Powers of attorney are essential to any estate plan. California recognizes several different powers of attorney, which differ in their details, but all serve a somewhat similar purpose. In most cases, a power of attorney lets an authorized third party—often a relative, spouse, or lawyer—make certain decisions on the principal’s behalf.
However, establishing powers of attorney can be a somewhat daunting task. It accords a great deal of power to the “attorney-in-fact,” while depriving other family members of any voice in the decision-making process. Some people try to curb potential abuse by instead executing a springing power of attorney—a conditioned alternative that takes effect only if they become incapacitated.
The Law Firm of Kavesh, Minor & Otis, Inc. has spent decades helping Californians plan for the unexpected. Our highly experienced team of estate planning lawyers could help you explore your options for a safe estate plan that curbs misconduct before it ever occurs. Our attorneys explain more about how a springing power of attorney could help you protect your estate.
The Different Powers of Attorney
A power of attorney is a legal document that accords a certain authority to a third party, often termed the attorney-in-fact. In California, powers of attorney have a wide range of potential uses, from performing routine transactions at the Department of Motor Vehicles to delegating responsibility for an entire family’s finances.
In estate planning, the most common powers of attorney include the following:
The Durable Power of Attorney
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.
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.
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.