Good advisors recommend their clients of all ages have powers of attorney (“POAs”) in place. But the biggest and apparently most hotly debated question is whether or not POAs should spring-meaning whether they should be effective immediately upon execution (typically the statutory default) or whether they should become effective only upon a determination that the principal is disabled (that is, spring into effectiveness upon the triggering event of disability).
Powers of attorney are considered essential in any estate plan as they are a great way to lessen (or eliminate) the need for court involvement in the case of incapacitation.
POAs allow someone else to handle your affairs. A general durable power of attorney allows someone else to handle your financial affairs and a health care power of attorney allows someone else to make medical decisions on your behalf.
Recently, WealthManagement.com publish an article about the pros and cons of making the effective date of a power of attorney immediate or springing. The article is appropriately titled “Powers of Attorney: To Spring or Not to Spring?“
The biggest issue with making a power of attorney effective immediately is that it makes it easier for someone (the “attorney in fact”) to abuse his or her power. All the attorney in fact needs is the document itself and he or she can have access to your finances and/or medical records.
However, if the power of attorney requires that you become disabled before it becomes effective, then the attorney in fact must prove that you are in fact disabled before acting.
The downside to this is that it makes it more difficult to act during an emergency.
There is no right or wrong answer when it comes to whether your powers of attorney should be immediate or springing. Without question, however, this is something you should talk over with your estate planning attorney.
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