A Power of Attorney is a legal document that allows you to appoint someone to take care of your finances and healthcare decisions if there ever comes a time when you can’t. The person you appoint is called your attorney-in-fact or agent. Some Powers of Attorney only become effective when you become incapacitated. They “spring” into existence once a certain event has taken place. That event is usually a declaration from a doctor, or maybe two, that you no longer have the ability to handle your own affairs or make your own decisions. These Powers of Attorney are called Springing Powers of Attorney. Other Powers of Attorney become effective immediately as soon as you sign the document. These Powers of Attorney are often called Durable Powers of Attorney or Immediate Powers of Attorney.
On its face, the Springing Power of Attorney may sound like the best option. After all, who wants someone else to have the ability to do things for them that they can do by themselves? To many people, it makes sense to let someone step in for you only when you can no longer make the decisions that need to be made.
However, our firm does not recommend Springing Powers of Attorney in most cases. Our goal is to protect you and to make your life as simple as possible every step of the way. Getting a doctor to declare you incapacitated would be stressful for you and for your agent. It is important to us that your agent has the authority to immediately help you do whatever needs to be done without jumping through hoops. We do not want you to be dragged to the doctor and put through a series of tests before your agent can act for you. If you have ever had experience with someone who may be suffering from dementia, you are probably aware they can sometimes become paranoid. The last thing they are going to want to do is go to the doctor to be deemed incapacitated so that their agent can start helping them.
It is true that appointing someone as your Power of Attorney gives them a great deal of power. This confirms why it is so important to choose someone you trust completely as your agent. Someone once pointed out to me, if you can’t trust that person to act for you while you have capacity, how in the world could you trust them to act for you when you don’t have capacity. That is a great point and sums up how we view Powers of Attorney.
Although your agent has a great deal of authority, they have a duty to act in your best interest. Your agent cannot do things that would not be in your best interests or against your wishes. For example, your agent cannot take all of your money and fly to Hawaii without you. If that happened, they could be held criminally and civilly liable. There are ways to limit your agent’s power, but we don’t recommend doing that either. It all goes back to trusting your agent.
We highly recommend that everyone over the age of 18 have Durable Powers of Attorney in place. Although none of us plan on ever needing help handling our own affairs, you never know what the future holds. It makes your family’s life so much easier if you have the documents in place now that would allow them to handle issues for you in the future…without having to be deemed incapacitated.