19043 man signing contract shutterstock 1504348610 - springing vs non springing power of attorney

Last Updated on May 31, 2024 by Tresi Weeks

A power of attorney is a document that grants various powers and responsibilities to a trusted third party or “agent” who can act on your behalf. There are however different types such as springing vs non-springing power of attorney. This document usually only allows an agent to make non-medical decisions, such as estate planning decisions on your behalf. A power of attorney can be a valuable estate planning tool that lets you decide in advance who will manage your affairs should you become unable to do so. It can also be a way to avoid expensive guardianship or conservatorship proceedings if you become disabled or incapacitated.

The way a durable power of attorney is formalized varies from state to state. Some states have particular requirements and wording that must be in a power of attorney for it to be valid and accepted. You may have heard of the terms “springing” or “non-springing” power of attorney and wonder what they mean.

What is a Springing Power of Attorney?

A springing power of attorney is a document executed now, but that does not take effect unless the principal becomes incapacitated or a particular event occurs. This type of power of attorney is contingent on something specific happening before it comes into force. If the event or incapacity never occurs, an agent will not be empowered to act on behalf of the principal.

Many people opt for a springing POA because they feel more comfortable knowing their agent can only exercise powers if a triggering event occurs. This can alleviate any concern that the agent may try to misuse a power of attorney.

A springing power of attorney is not always easy to use. Depending on your jurisdiction, it may be necessary to have a medical professional, such as a doctor certify that a triggering condition has occurred.

Let’s say you become medically incapacitated. Where required, the professional will likely have to complete an affidavit attesting to your condition or that certain events occurred. Often, a medical professional will not be comfortable signing an affidavit or may require their own attorney to advise them on how to proceed. This can cause delays that can frustrate an agent’s ability to act, especially in time-sensitive situations.

Additionally, financial institutions may be reluctant to accept this type of power of attorney because it is difficult for them to judge whether you truly are incapacitated or if a triggering event has in fact occurred. A certain amount of caution on the part of financial institutions is understandable: When someone steps forward claiming to represent the account holder, the financial institution wants to verify that the individual indeed has the authority to act for the principal.

What is a Non-Springing Power of Attorney?

With a non-springing power of attorney, the agent has the powers granted in the document the moment it is signed by you and the agent(s) you designate. So, even if you are capable of signing for yourself or handling certain transactions, your agent could still sign for you without your involvement.

A potential disadvantage to a non-springing POA is the potential for mismanagement. If you appoint someone as your agent under a non-springing POA, but circumstances change and you no longer trust that person to act in your best interests, it may be difficult to revoke the POA without going through legal proceedings. Power of attorney takes effect immediately upon signing, meaning your attorney could abuse his or her authority before you need assistance due to incapacity.
It is important to weigh all the factors associated with a springing POA and non-springing POA to ensure you choose the right one for your legal proceedings.

How Some States Approach Powers of Attorney

Many states have taken steps to address some of these problems. New York, for example, implemented a statutory form in 2021 that, if filled out and executed correctly, financial and other institutions will be more likely to accept. In particular, it has a provision where the agent agrees to reimburse the third party for any claims that may arise against the third party because of reliance on a power of attorney.

To help limit the potential for abuse by an agent, New York’s form also allows a power of attorney to be narrowly tailored to a specific purpose.

The laws of each state will vary when it comes to powers of attorney. For guidance on a springing or non-springing power of attorney, consult with Weeks Law Firm today.

Communication resulting from use of this web site does not create an attorney-client relationship. You will need to meet with an attorney and sign a separate written retainer agreement.

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