by Loulena Miles, California Estate Planning Attorney
and Partner at Miles & Torres Associates
What in the heck is a “Springing” power of attorney (and why would I want one)?
You’d only need one hour of law school to learn that the profession is full of archaic old language that harkens back to the days of yore. As an attorney I am here to tell you that despite the off-putting language, you should be familiar with what a springing power of attorney is and what it can do for you and those you love. In fact, it is something that will be very helpful to you at some point in your life, and the option to have it springing may be very attractive once the term is clarified.
Powers of Attorney are tools that enable another person (your agent or “attorney in fact”) to act on your behalf as if they were you. Thankfully they are also legally required to act in your best interest. You choose when these documents go into effect, either immediately after signing it, or when one or more doctors or trusted individuals certify that you are unable to make decisions. These documents can allow people to buy and sell your home, pick up your medicine, sign releases from hospital care, apply for government benefits, and even withdraw funds from your accounts. Granted that may sound a little scary to give someone so much power over your life, so it is incredibly important to name someone who you trust implicitly. The “springing” comes into play if you only want the document to be effective upon your incapacity.
So let’s get a few important terms straight – a durable power of attorney is a power of attorney that will last even if you no longer have the mental capacity to manage your own affairs.
A limited power of attorney can be designed to empower a person to act on your behalf for a limited purpose, or for a limited period of time i.e. you’re going on a trip around the world (you wish) and you want your ”agent” to be available to make decisions about your life while you are gone.
A springing power of attorney is a document that only “springs” into use if you are incapacitated (due to dementia or Alzheimer’s disease or if you are in a car accident and you don’t want things to fall apart while you are unable to make decisions, etc).
An advance healthcare directive is generally a springing power of attorney for healthcare decisions with some extra bells and whistles. Notably, an advance directive also gives your family and loved ones some critical information about how you would want your healthcare managed – this can really simplify things if difficult decisions have to be made and take the emotional burden off those that you love. Depending on your needs at any particular time, we can recommend which power of attorney is right for you.
Those with aging family and friends should discuss having these documents drafted when times are good and the loved ones are still ‘with it’ mentally. All seniors should have the opportunity to choose whom they would want to act on their behalf and help them do things when they lose physical and/or mental capacity. If a person loses capacity without these documents, a full court “conservatorship” process is often required – that can be stressful and time consuming, and may not reflect the person’s choice of who would be in charge.
We generally recommend that everyone have at least a springing power of attorney and an advance healthcare directive drawn up at the same time that they complete their wills and trusts. These documents can be invaluable when they are needed, and your friends and family will thank you for your foresight to take care of these matters in advance.