When creating your power of attorney, you and your attorney have to decide whether or not to use a springing power of attorney. Although this might seem the best course of action to take, it can possibly cause an even bigger headache for you and your family. If you are thinking of a springing power of attorney, it is important that you understand the potential problems that could occur.
What Is a Springing Power of Attorney?
A springing power of attorney goes into effect as soon as you are considered to be incapacitated. This differs from a durable power of attorney in that it does not require your signature to go into effect. If you are uncomfortable with the idea of having to sign a power of attorney while you are considered to be able to take care of your affairs, the springing power of attorney is right for you. However, there are some downsides to it.
Why Should You Not Use a Springing Power of Attorney?
One of the biggest issues with a springing power of attorney is determining exactly what incapacitated means to you and your appointee. Are you considered incapacitated if your appointee feels that you are unable to make decisions? What if your doctor does not agree with the appointee's assessment and believes that you are capable of making decisions on your own?
Another factor that could influence whether or not you are truly considered incapacitated is your overall health. What if you have good and bad days that impact your ability to make decisions daily? If your ability to make decisions fluctuates day-to-day, do you want the appointee making decisions for you on just the bad days or every day?
The appointee also has to get certification that you are unable to make decisions. In most cases, it is the doctor that provides that certification. This can take some time to obtain, which means that your personal and financial affairs would not be handled for a period of time.
Are There Solutions to These Issues?
The most obvious solution to problems with the springing power of attorney is to opt for the durable power of attorney instead. Your estate planning attorney can help you determine in which specific situations your appointee would take over your affairs. This can help you avoid a potential delay in handling your affairs and also ensure that you have more control over when the appointee takes over.
Whether or not the springing power of attorney is right for you is dependent on your preferences. Talk to your attorney, like those at Donald B Linsky & Associate Pa, about your concerns, and he or she can help you decide what is best for you.