What Is A Springing Power Of Attorney?
If you are unable to handle your affairs, or are concerned that you may one day be incapacitated, you may think of using a Power of Attorney. This is a good idea–a Power of Attorney (POA) will immediately allow whoever you designate, to handle your affairs. The POA can be limited to only certain parts of your life, or it can give the designated agent full power over every aspect of your life.
The Problem With a POA
POAs are helpful but they have one drawback: We don’t know when we may be incapacitated, but a POA takes effect immediately. A POA generally can’t be used “in case XYZ happens,” or “in the event that I am ever incapacitated.”
If you want your POA to be conditional, that means you will need a different kind of POA, called a Springing Power of Attorney (SPOA). As the name implies, the POA “springs” into effect when the designated event in the POA, usually some form of incapacity, comes to fruition.
Drafting the SPOA
A SPOA must be carefully drafted, because it must set some sort of parameters for others to determine when it springs into effect–that is, it needs to say when you are incapacitated and when you are not, and have a procedure for determining your incapacitation.
Some questions that your SPOA may need to address might include:
-Does it come into effect when you are physically or mentally incapacitated, or both? You can opt to use the legal definition of incapacitation, such as what is used in guardianship proceedings but that may be too restrictive (or not restrictive enough)
-Who determines when you are incapacitated–it can be a designated medical professional, but what if family disagrees? If you will designate a family member to determine incapacitation, is there a process by which other family members can object?
Many SPOAs will have designated “second opinion” processes, whereby family who may disagree, can agree on a second, neutral physical to make that determination.
-Will it include disappearance, or catastrophic events where you temporarily cannot be found or located?
-Once in effect, will the SPOA only allow the designated agent to handle financial affairs–or can the agent also make medical and personal decisions on your behalf?
If you continue to be incapacitated, you or your family may want to have a guardianship or a conservator ship appointed for you to manage your affairs. These are preferable in the long term to a SPOA or a POA, because the court oversees the incapacitated person’s affairs and monitors what the guardian is doing–there is no such official, legal oversight with a SPOA, which can create problems when the incapacitation looks like it will continue indefinitely.
Your SPOA should specify a procedure by which someone can institute a guardianship procedure on your behalf, should the designated agent in the SPOA disagree with having a guardianship appointed.
SPOAs can be revoked–but if they come into effect when you are incapacitated, most SPOAs will require that you show you are no longer incapacitated, in order to validly revoke the SPOA. This, again, may require the SPOA detailing the procedure to show that you are now able to handle or manage your own affairs.
Call the Torrance wills attorneys at Samuel Ford Law today to learn what estate planning tools are available for you.