A springing power of attorney takes effect (or “springs”) after you have been incapacitated or are otherwise unable to act on your own behalf. Until then it has no effect, meaning that you can assign someone power of attorney in case you need someone to make decisions for you. It is a planning tool that people chiefly use to prepare for a medical crisis or aging. Here’s how it works. Consider working with a financial advisor as you do your estate planning.
What Is a Power Of Attorney?
Power of attorney gives someone the authority to make financial, medical and legal decisions on your behalf. There are some limits to this position. For example, a power of attorney cannot pass their authority on to someone else. Nor can a power of attorney rewrite your will or enrich themselves with your bank accounts. Within the legal boundaries, however, a power of attorney has the authority to make any decisions that you can and those decisions will be as legally binding as if you had made them yourself.
You can either assign someone a general power of attorney or a specific one.
A general power of attorney has no limits beyond those set by the law. Someone with general power of attorney can sign many contracts on your behalf, execute financial transactions in your name (and with your money), make decisions regarding your medical care and more. In all of these cases the power of attorney’s decisions will be legally binding on you and your property.
With specific power of attorney you assign a certain scope of authority. You can define which decisions the power of attorney can make on your behalf, or specify the time period for which their authority as power of attorney will last.
For example, it is very common for people to give their accountant power of attorney for the purposes of filling out and filing their taxes. This means that their accountant can access financial information freely and sign their tax forms, since this falls within the scope of the accountant’s authority. However, the accountant wouldn’t be able to write checks, since this falls outside of the authority needed to file someone’s taxes.
Medical power of attorney is one of the most common specific power of attorney assignments. In this assignment, the person who acts as power of attorney can make medical decisions on your behalf. This means that they can decide on courses of treatment, medication, etc. and the doctor will enforce those decisions as though you had made them.
Someone cannot act as your medical power of attorney unless you are incapacitated and incapable of making your own decisions. For this reason, it’s often unhelpful to assign a medical power of attorney in advance of treatment. You can name someone to this position, but they can’t actually do anything while you’re awake and lucid.
To address this, lawyers came up with the springing power of attorney.
What Is a Springing Power of Attorney?
A springing power of attorney grants authority only when certain conditions are met. It is otherwise dormant and unenforceable. Ordinarily when you assign someone power of attorney their authority takes effect either instantly or at the date and time you name. In our example above, say, you might give your accountant financial power of attorney to file your taxes, specifying that it will be effective from April 10 through April 16. In this case their authority would not begin until April 10 and would not continue past April 16.
If you do not specify any conditions it is called a durable power of attorney. This means that the authority begins immediately and lasts until you specifically rescind it.
A springing power of attorney is a type of durable power of attorney. In it, you specify the conditions that must be met before this power of attorney takes effect. Unless those conditions are met, the power of attorney form does nothing. Once the conditions are met, the person you name will have power of attorney until such time as those conditions expire.
For example, you might say that your spouse has power of attorney if you are ever rendered unconscious. If you are sedated for surgery, that springing power of attorney would come into effect and give your spouse power of attorney over your affairs. Once you wake up from your surgery, the conditions would end and so would the power of attorney.
Types of Springing Power of Attorney
The most common type of springing power of attorney is medical. It is common for people to establish a medical power of attorney who will make treatment decisions on their behalf if necessary. (This is also sometimes known as a “medical proxy.”) This type of document only takes effect if someone is incapacitated, not lucid, or otherwise medically incompetent.
While illness is the most common condition for using a medical power of attorney, people can use them in a wide variety of places. For example it is also common for service members to use a financial springing power of attorney while they’re on active duty. They might assign their power of attorney to a spouse or family member. While they’re home, the document would have no effect. When they’re on duty in a foreign country, the power of attorney form would spring into action and allow this family member to take care of any financial matters as necessary.
The Bottom Line
A springing power of attorney is a type of durable power of attorney assignment. Instead of assigning your authority immediately, this form creates a condition under which someone will take handle matters on your behalf. It is typically used for when people are incapacitated and need a friend or family member to make medical decisions for them.
Estate Planning Tips
- When a springing power of attorney takes effect, what kind of authority does it transfer exactly? Now that you know all about the conditions that can cause a power of attorney, learn about what it will do.
- Will power of attorney help with your finances? That’s just one of the estate-planning questions a financial advisor can help you with. Finding a qualified financial advisor doesn’t have to be hard. SmartAsset’s free tool matches you with up to three vetted financial advisors who serve your area, and you can interview your advisor matches at no cost to decide which one is right for you. If you’re ready to find an advisor who can help you achieve your financial goals, get started now.
Photo credit: ©iStock.com/SrdjanPav, ©iStock.com/Creativeye99, ©iStock.com/djedzura