Dear Mr. Premack: I went to your website for information on powers
of attorney. I understand the difference between a durable power of
attorney and a medical power of attorney. What I don’t get is the
difference when you talk about a springing power of attorney. What is the
difference between durable and springing? Aren’t they both so I can choose
someone to help with my finances and pay bills for me? Thanks. – H.R.
Thanks for visiting my website. You may have been looking at the Virtual
Online Law Office questionnaire that asks if you desire a power of
attorney that is durable or springing. Or you may have been re-reading my
June 3, 2011 column (“Why is bank demanding a
Doctor’s letter for wife to use POA?”). In that column, I said that a
springing power of attorney is simply a durable power of attorney for
which the starting date has been shifted forward in time.
words, when you sign a general durable power of attorney, it goes into
effect on the day you sign it. Your agent has authority as of that moment.
When you sign a springing general durable power of attorney, your agent
must wait until you become disabled before authority begins. But whether
your power of attorney is durable or springing, its intention is to allow
you to authorize someone you trust to help manage your assets.
Here are other common questions that I receive about springing general
durable powers of attorney:
1. What does it mean to become
“disabled” in this situation?
When I write a springing general
durable power of attorney for someone, I include two trigger mechanisms.
First, you can decide for yourself that, in your own judgment, whether you
are disabled. You then sign a notarized affidavit to that effect, and your
agent’s powers commence. Second, your physician can determine, after
examining you, that you have suffered a substantial impairment in the
ability to care for yourself or to manage your assets due to illness,
injury, or mental impairment. Your physician then signs a notarized
affidavit to that effect, and your agent’s powers commence.
rely solely on the statute, then there is only a single trigger mechanism.
When a physician certifies in writing that you are mentally incapable of
managing your assets, your agents powers commence. I have always thought
that my broader approach (which is fully allowed under Texas law) is more
useful than the limited statutory approach.
2. How will my agent
know that I have become disabled?
Most often you will have
designated an agent (and alternate agents) who are close to you. As such,
they know you and keep tabs on your health condition (albeit very
informally). If you have selected someone more distant, like a bank trust
department in conjunction with a standby living trust, then you must work
out a way for the representative to stay updated on your condition. A
daily phone call is often a very useful method.
3. How does my
Agent proceed when I become disabled?
After obtaining the written
affidavit evidencing your disability, the agent has power to act within
the limits you set in the power of attorney. The Agent would show the
affidavit and your power of attorney to your bank, broker and others. They
will then accept your Agent’s instructions so that your assets can
continue to be properly managed. Your agent is your fiduciary, and must
always act with your best interest as the highest goal.
If your primary
agent dies, resigns or is disabled, your Alternate Agent takes over. The
same evidence of disability would be gathered by the Alternate Agent – who
would then display a) the affidavit that you are disabled, b) the
statement that your primary Agent is disabled (or has died, or has
resigned), and c) the power of attorney.