The Advantages and Disadvantages of a Springing Power of Attorney

Powers of attorney play a critical role in estate planning. By delegating certain authorities to a trusted friend, family member, or lawyer, called the attorney-in-fact, testators can ensure that their interests are respected. However, concerns about abuse are common, to the point that many Americans prefer to “spring” their powers of attorney, conditioning them to take power only upon a finding of incapacity.

The Law Firm of Kavesh, Minor & Otis, Inc. has spent decades helping Californians through times of uncertainty. Our experienced team of Los Angeles and Orange County estate planning attorneys could help you or a loved one explore the advantages of different powers of attorney, assessing your unique needs to enact powerful solutions.

The Springing Power of Attorney in California

California recognizes several different powers of attorney—people authorized to make certain decisions on the principal’s behalf. The most common of these powers include:

• The financial power of attorney
• The medical power of attorney
• The springing power of attorney

The financial and medical powers of attorney are both examples of what are typically termed durable powers of attorney. In most cases, durable powers of attorney become effective upon signing, and they remain in effect until they are either revoked or the principal passes away.

The springing power of attorney, in contrast, can only be asserted after a medical professional finds that the principal is incapacitated.

Assessing the Strengths and Weaknesses of the Springing Power of Attorney

Since the springing power of attorney can only be executed after a finding of incapacity, it can prevent attorneys-in-fact from abusing their positions over long periods of time.

You might benefit from a springing power of attorney if:

• You are in the armed forces and have received notice of an overseas deployment
• You have legitimate concerns about the ability of your attorney-in-fact to manage complex assets or make higher-level medical decisions
• You are not sure whether you can trust your agent to act in your best interests

However, even though the springing power of attorney can prove useful to military officers and testators unable to appoint a reliable attorney-in-fact, activating springing powers of attorney can be unexpectedly difficult—in part because it can take hours, days, or even weeks for medical professionals to establish whether the principal is actually incapacitated.