The Durable versus "Springing" Power of Attorney

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The Durable versus "Springing" Power of Attorney

You should understand that a durable POA takes effect immediately—it does not wait until disability. Therefore, it is possible, in theory, for the agent to act independently, behind the principal’s back, even if the principal is healthy. Some people find this thought unsettling, but, usually, it ought not be. Presumably, of course, your agent is trustworthy beyond reproach. If you don’t have such a person available, then perhaps, unfortunately, the durable POA is just not for you.

What does a springing POA do?

An alternative to this kind of durable POA is the "springing" POA. This is a type of POA that works, and is worded, differently—it does wait until disability, and only then "springs" into action. This can pose a big problem: there must be a formal determination of disability before the springing POA will be considered operative and be accepted. Moreover, a springing POA still allows your agent to act behind your back. In fact, doing so is even easier because you would be disabled and less likely to detect agent misconduct.

At best, this means at least a short delay and expense. (A springing POA might provide, for example, that two doctors must examine you and attest to your disability.) At worst, there might be uncertainty, disagreement or squabbling among doctors and/or family over the degree of your disability or incompetence. Physicians might be reluctant to get involved in a legal dispute by rendering an opinion.

Some difficult things to keep in mind

Banks or others might balk at recognizing the authority of the agent for this reason. If this situation unfolds, the matter could wind up in court—the very thing you wanted to avoid. The springing POA is apparently used because some people just feel uncomfortable making a delegation of power today, while still healthy. While that sentiment is quite understandable, the potential problems should be considered, too.

Finally, remember that for any type of POA to be valid, the principal must be of sound mind when signing it, even if it is to remain valid during subsequent disability (i.e., durable). Often, however, the need for a POA is not recognized until the principal’s mental condition has already deteriorated. But if the principal has not reached the point of complete incompetence—if he or she still has some "good" days—a POA should be valid if signed during a lucid interval within a prolonged period of incompetence.