People are often hesitant to give someone their durable power of attorney (POA) simply because those go into effect immediately and there is always the potential for misuse.
One alternative to a durable power of attorney that’s often proposed is the use of a “springing” POA, instead. As its name suggests, this kind of POA only “springs” into effect when a specific event occurs – which is usually the grantor’s incapacitation.
While a springing POA sounds like a practical solution for anybody who is concerned about losing their autonomy or control over their affairs until they’re really unable to manage on their own, they are not necessarily as useful as you might think. Here are some potential problems to consider:
Ambiguity in defining incapacity
What does “incapacity” actually mean? Even doctors may define it differently. Does it mean physician disability, a coma or cognitive decline? If it means cognitive decline, what stage of decline triggers the POA?
If the POA doesn’t clearly define what it means for you to be “incapacitated,” there can be a lot of disputes – especially if there are some in your family who feel like your POA is overreaching.
Delays in the POA’s ability to act
Even if your documents have a clear definition of what triggers the “springing” nature of the POA, proving incapacity will still likely require at least one medical evaluation and a doctor’s signature on some paperwork – which may be time-consuming or hard to get. If your condition fluctuates, which is common with cognitive declines, a doctor may be very reluctant to sign.
That can leave your POA unable to pay your bills, manage your investments or make important medical decisions on your behalf, and your care or finances could suffer as a result.
Ultimately, you need to make sure that whatever decisions you make when it comes to granting someone your POA are best for you – and there’s no “one-size-fits-all” solution.
