August 10, 2011
A springing power of attorney is a durable power of attorney whose powers “spring” into effect only after a predetermined event, such as incapacity or disability.
This tends to be an attractive alternative for people who do not feel comfortable with a durable power of attorney that takes effect immediately after signing. They don’t want someone abusing the privilege or making unwanted decisions on their behalf. In reality the immediately effective power of attorney is like a blank check waiting to be used.
The tricky part of a springing power of attorney, though, is that someone else determines when you become incapacitated. If there are conflicting opinions, things can get very complicated and stressful.
In order for the Springing Power of Attorney to take effect, there must be a formal determination of disability of the principal. Most form documents (and often attorney prepared ones) require the written determination of two medical doctors that you are disabled or incapacitated/incompetent before your agent can make any decisions on your behalf.
Only after these doctors agree, and an Affidavit reflecting this is attached to the power of attorney, will other institutions like banks or the IRS accept the document. This can cause problems if decisions need to be made quickly and there is a hold-up in determining your disability status.
The Sacramento estate planning lawyers at The Chubb Law Firm have also seen cases where the Affidavit is approved, attached, and days or months pass without the power of attorney being needed. Then when the agent goes to use the power of attorney later, some institutions question whether or not the Affidavit is “fresh” enough, thus requiring further proof that the individual is disabled and has not made some sort of recovery.
The best way to avoid all of these problems is to choose the right power of attorney from the start and keep it up to date. Talk to a Sacramento County estate planning attorney about your options to ensure you have the right legal tools in place to make life easier for you and your loved ones. Feel free to call our Gold River office at (916) 241-9661 ask if you qualify for a free Peace of Mind Planning Session with the mention of this article ($750 value). These sessions are limited to 10 per month so call today!