Powers of Attorney: Springing or Not?

Springing durable power of attorney.  Doesn’t the name just sound wonderful?  It has a feel of bunnies and Slinkies.  But there’s more to it than just a name.

The springing durable power of attorney is meant to be an alternative to the durable power of attorney.  The durable power of attorney is a document that gives the person you authorize (attorney-in-fact) tremendous power.  It allows them to act as you.*  Of course, you may not want your attorney-in-fact to go around exercising those powers, so the springing durable power of attorney was invented.  With a springing durable power of attorney, none of the powers of the durable power of attorney are available to your attorney in fact until you are disabled or incompetent.  This sounds nice, right?  That way your attorney in fact can’t do anything until you really need it, right?

Let me illustrate how a springing durable power of attorney works with a true story.

Once upon a time, Cindy (our fearless leader), was on her way to London.  Unbeknownst to her, a neighbor in her condo association was doing a little work on his home.  With a  dump truck.  The dump truck was incompletely parked on an incline above Cindy’s garage, and did as wheeled things on inclines do: it rolled down the hill into Cindy’s garage.  The damage was substantial, a corner of the building collapsed and it was a tremendous mess.

So, Cindy arrives in London at her hotel and has a call waiting for her.  Her attorney in fact (a close, trusted friend) had called to let her know about the damage and see what she wanted done.  Cindy told him and he tried to do it.  But, since he had a springing durable power of attorney for Cindy and not a durable power of attorney, he wasn’t authorized to make any decisions on her behalf.  he couldn’t even put plywood up to cover the gaping hole.

So therein lies our lesson: springing durable power of attorney’s are only useful when sprung, and not a moment earlier.  From that incident and other reasons, we came to the conclusion that if you trust someone enough to make them your attorney in fact, then why not trust them with a durable power of attorney?**

*  You can, of course, place restrictions on this in your own documents.  Speak with a lawyer for details.

**  Remember, I’m not a lawyer.  When making changes to your documents always consult a lawyer.

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