Should You Spring a Durable Power of Attorney?

Estate Planning, Power of Attorney

An experienced estate planning attorney can help you determine whether or not you should spring a durable power of attorney. Having professional legal counsel in your corner can provide you with information to make the best possible decision for your specific circumstance.

The term spring a durable power of attorney may sound a bit odd. Still, it refers to springing a durable of power or attorney into action if you become incapacitated. Many people have a difficult time with the idea of effecting a power of attorney. Some people who can make sound decisions are more comfortable with the option of springing a durable power of attorney into effect if it should ever become necessary. In the end, decisions related to a durable power of attorney tend to be quite complicated, but the dedicated estate planning attorneys at Ibekwe Law, PLLC (512-505-275) in Texas can help you determine what the best path forward is for you.

Powers of Attorney: Their Scope

Powers of attorney are documents that are generally intended to help those to whom they apply (the principals) manage their affairs in any or all of the following areas:

  • Medical care
  • Financial concerns
  • Legal matters

The responsibility of power of attorney (POA) is assigned to someone (the agent) whom the principal trusts to carry out the job at hand –regardless of the POA’s scope and purpose. Sometimes, the principal remains capable of making the decisions involved on his or her own but wants to ensure that they have backup when making important medical, financial, and/or legal decisions.

When they are well-crafted, POAs can help ensure that there is a trusted agent available who is ready to step in and keep matters moving forward smoothly if it becomes necessary –without the costly and time-consuming legal hassles that may occur when there is no POA in place. A durable power of attorney is activated upon execution (when the document is signed), and a sprung POA –as mentioned –is activated or sprung only if the principal is incapacitated. The scope of every POA –the kinds of decisions the agent will be making –is outlined in the POA itself, and this is what makes working closely with an accomplished estate planning attorney so important.

Granting Power of Attorney

The person who becomes your power of attorney –the agent –is also known as the attorney in fact, but he or she need not be an attorney. You can make virtually any adult whom you trust to do the job at hand POA’s agent. Because your POA can be highly specific, even a durable POA that goes into effect immediately upon signing need not be a frightening prospect. For example, bestowing your POA the power to pay your medical bills or other monthly expenses is quite specific, and there is little room involved for overstepping one’s boundaries as your attorney in fact. In other words, it is often a better plan to have a solid durable power of attorney in place rather than to spring a durable power of attorney simply to help you bypass any lingering concerns you may have.

Are You Actually Incapacitated?

While you spring a durable power of attorney when you become incapacitated (if you have a springing power of attorney in place), this begs the question of how your incapacitation will be determined if the time does come. While your POA may specify that two physicians must sign off on your inability to make crucial decisions for yourself moving forward, this can lead to considerable delays in which no one will be in charge of the affairs addressed in your springing POA.

The fact is that it can take weeks –if not longer –to obtain the necessary certifications from two separate physicians. Often, incapacity is not black and white. For example, while an irreversible coma is a relatively easy call, the beginnings of dementia and other forms of slow decline are not. At the very least, the doctors making this pivotal determination will want to put in all necessary due diligence before deciding this magnitude.

Privacy Concerns

There is also the question of HIPAA (Health Insurance Accountability and Portability Act) violations to consider. Doctors are bound by HIPAA’s privacy constraints, which means there may be information they cannot share with your attorney in fact –unless your agent can prove authorization. This can create another layer of difficulty if you decide to spring a durable power of attorney –even if you take the additional precaution of creating and signing a release in conjunction with that POA document.

Trusting Your Agent

A springing POA is often implemented to bypass the concern that one’s attorney in fact will insinuate himself or herself into the position of decision-maker before his or her services are needed. This is based on the fact that, in a durable POA, the agent is authorized to assume the role of decision-maker from the moment the document is executed. The most important point to make if you are hesitant about creating a durable power of attorney is that you should not assign an agent unless you trust him or her implicitly. This kind of trust is non-negotiable and does not fluctuate. If you are on the fence about the person in question, he or she is not the agent for you. If you do not entirely trust someone as your agent for a durable power of attorney, he or she is probably not a good bet for a springing power of attorney either. In summation, opting for a springing a power of attorney can create more obstacles than it overcomes, and the peace of mind you think it might provide can be more illusory than anything else.

Discuss Your Concerns Regarding POA with an Experienced Estate Planning Attorney

Suppose you are wondering whether or not you should spring a durable power of attorney. In that case, it is an excellent time to reach out to the dedicated estate planning attorneys at Ibekwe Law, PLLC in Texas. We have the experience, legal insight, and compassion to help you make the right decisions for yourself and your legacy. We are on your side, so please do not wait to contact or call us at 512-505-2753 today.