What You Should Know About a “Springing” Power of Attorney

  • Posted on: Mar 18 2022
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Estate plans are important because they help you to not only plan for how you want your family to be taken care of (after you pass away), but also for how you want to be cared for or taken care of should you be unable to take care of yourself. In other words, an estate plan can help to establish who will take care of you should you become incapacitated.

What is a Financial POA?

If you become incapacitated at any point during your lifetime you would want someone who can act on your behalf, in your best interest. A Power of Attorney is a way in which you can appoint someone to care for you immediately, many people only want someone to get involved after a specific event occurs. A Springing Power of Attorney is a type of financial POA that only begins after the occurrence of a specific event. A springing POA can be made to occur should you become incapacitated.

Another way to look at it is that a springing POA is conditional. It only takes effect when specific conditions are met. While an immediate financial POA goes into effect immediately after it’s signed, a springing financial POA remains inactive until the pre-established condition. While everyone should have a financial POA and a springing financial POA can be very helpful, if you don’t properly draft it, it can lead to confusion and subsequent issues. 

What Does it Mean to be Incapacitated?

It’s clear that a springing POA can be set to go into effect when someone becomes incapacitated. But what does it mean to be incapacitated? Incapacity covers physical disabilities or illnesses, mental illnesses, advanced age, drug abuse, and more. Whether or not you are considered incapacitated for purposes of your financial POA is a finding for your treating physician. If the doctor notes that you are, in fact, incapacitated, it will trigger the springing financial POA. 

An Attorney-in-Fact

Once your springing financial POA goes into effect, there must be an individual whom you appointed, who will act on your behalf. This individual is known as an attorney-in-fact or an agent. The attorney-in-fact will make decisions for you that you would be making had you not become incapacitated. When you are establishing your springing financial POA, you can allow the agent to have great deference or you can limit the types of decisions that they can make. 

What if You Don’t Have a Financial POA

It’s important to note that you will most likely be able to revoke your springing financial POA at any point in time – so long as you aren’t incapacitated. Your signed springing financial POA will be revoked when you die. While nothing requires you to establish a financial POA of any kind – or a POA of any kind, for that matter – it’s in your best interest to have one. This is because if you become incapacitated without a springing financial POA, no one will be immediately able to help you with the decisions you would otherwise be making. Plus, it can take months before your family is able to obtain guardianship or a conservatorship.  

The Law Offices of Brian L. Fox, APLC Help those Who Wish to Establish a Springing Financial POA

If you or your loved one live in California and have any questions regarding a springing financial POA (or any time of POA), it’s in your best interest to consult with a qualified California estate planning attorney who can help to guide you through the whole process. 

At the Law Offices of Brian L. Fox, APLC, we know how important it is to protect yourself and your assets. We will help you to establish a comprehensive estate plan that meets your needs. To learn more or to schedule a free consultation, contact us today!

Posted in: Estate Planning