“Springing” Powers of Attorney: Three Questions
Sometimes a client may want to grant a power of attorney to allow another person to manage her affairs but delay the effective date of such power to a time in the future. These are often called “springing” power of attorneys, because the power “springs” to life at a later date. Springing powers can be a helpful estate planning tool, particularly when an individual is currently in good health and in full command of his or her faculties.
Any springing power of attorney must answer at least three questions: 1) When does it become effective? 2) How long is it effective? 3) Is it still effective if the grantor regains capacity?
Effective Date: The first consideration is when the power springs to life – or its effective date. In some cases, the power of attorney is immediately effective by default (although as a result, it is not a true springing power):
This power of attorney is effective immediately unless I have stated otherwise in the Special Instructions.
The simplest springing power has language to specifically list when it becomes effective, such as in this example:
This Springing Power of Attorney shall become effective on January 1, 2025 or on the occurrence of my husband’s death or on my disability, incapacity or adjudged incompetency.
In some cases, individuals may want to require some proof of such disability, such as a physician’s letter, before the power is granted:
This Power of Attorney shall become effective when a letter written by my attending physician is attached to it stating that my attending physician has determined that it is in my best interest to have the assistance of an agent in handling my affairs (either for the foreseeable future or for a specified time period).
Effective Term: Once the power of attorney becomes effective, the second question is when it expires. In most cases, there are two options. The power could be open-ended, with no expiration date; or it could remain in effect only until the incapacity has been terminated.
Recurring Disability: If the power of attorney has an end date, a final question must be answered. What happens if the disability ends but later reoccurs – such as, for example, a second stroke?
Our office recommends allowing the springing power of attorney to be revived – rather than revoked altogether – if the individual is disabled again at a later time:
Upon my regaining capacity, this Durable General Power of Attorney shall not be revoked but shall become effective again upon my subsequent disability, or incompetency as set forth above.