Shouldn’t My Durable Power of Attorney Take Effect Only If I Become Incapacitated?
A power of attorney may be either immediate or “springing.” Most powers of attorney take effect immediately upon their execution, even if the understanding is that they will not be used until and unless the grantor becomes incapacitated. However, the document can also be written so that it does not become effective until such incapacity occurs, at which point it “springs” into effect. In such cases, it is very important that the standard for determining incapacity and triggering the power of attorney be clearly laid out in the document itself.
In almost all cases, we recommend that our clients execute immediately effective powers of attorney. If you trust the person you are appointing enough to appoint in the first place, then you usually also trust him to step in only when necessary. Even with clearly written standards for when a springing power of attorney takes effect, putting in requirements such as getting a doctor’s certification as to your incapacity adds an extra burden on your attorney-in-fact at the same time he is probably already dealing with the health issues that gave rise to your incapacity in the first place. It’s easier to keep it simple. If your attorney-in-fact begins using the durable power of attorney contrary to your wishes, you can always revoke it. (Of course, this could lead to a battle over whether you’re competent to take that action at that time.)
If you would still rest more comfortably with a “springing” power of attorney, we generally write them to have a place on the document for a doctor to sign certifying your incapacity. The doctor’s signature seems to reassure banks and other financial institutions that the document has been invoked.
Another alternative would be for your lawyer to hold the document in escrow until it’s needed. Lawyers may be more or less comfortable with this role since it gives them more responsibility than they may want to take on in terms of determining when you have become incapacitated. They may want you to sign a formal escrow agreement laying out the terms under which they would release the power of attorney to the attorney-in-fact. This may also end up being somewhat costly if the lawyer bills for her time making certain that you have indeed become incapacitated.