The powers and responsibilities granted under a power of attorney normally become effective immediately when the document is signed. The “springing” power of attorney is designed to become effective only when the principal becomes incapacitated or upon the happening of a contingency.
A power of attorney may be effective at a future time or upon the occurrence of a contingency specified in the instrument. It also provides a statutory short form which clearly states on its face “EFFECTIVE AT A FUTURE TIME.”
The powers granted under a springing durable power of attorney are the same powers granted by a non-springing durable power of attorney, but the powers granted by the “springing” power become effective only upon the occurrence of the triggering event or contingency. Additional powers may be added as in the durable power of attorney. The use of this document reduces the potential for abuse since your agent has no power to act on your behalf until the triggering event occurs.
A springing power of attorney must meet all the requirements of a durable power of attorney. In addition, the springing power includes the terms which evidence your intent to have the powers granted and become effective only upon the happening of the event or the contingency you have picked as your “trigger” for the springing power of attorney to become effective. This can be at a specified time in the future, or upon the happening of a specified event, such as your incapacity.
Under a springing durable power of attorney, it is necessary to designate the person or persons (often a physician) who will certify that the specified triggering event has occurred. This designated individual or individuals will complete an affidavit to the effect that your contingency has been met, thus allowing your springing durable power of attorney to become valid for the agent appointed in the document.
Although the springing power of attorney is a very appealing concept, in practice it is difficult to prepare and use. There is no set form, so physicians, or more likely, their counsel, have to scrutinize each authorization submitted in order to make sure it complies with the rules. Thus, there may be delay before the affidavit may be completed. Second, many banks and other financial institutions are reportedly reluctant to accept springing powers of attorney because of lack of certainty that the springing event has in fact taken place.
Because of these difficulties, it is not advisable to prepare a springing power of attorney without the assistance of an attorney experienced in this area of law.
If you or a family member need assistance with power of attorney me at (716) 542-5444.