Springing Durable Power of Attorney as Part of an Estate Plan

A Springing Durable Power of Attorney is a very important estate-planning tool. Most people understand the nature of a power of attorney. A Special or Limited Power of Attorney allows a person to handles a specific matter or tasks for the grantor. A General Power of Attorney, on the other hand, allows the individual named in the Power of Attorney to handle a large array of tasks or matters. A person holding your General Power of Attorney has the apparent authority to act in any of your affairs. A lesser understood attribute of a Power of Attorney is whether it is durable in nature. A Durable Power of Attorney remains in effect even after a person loses consciousness, is incapacitated, or becomes mentally ill. A Power of Attorney that does not have specific language in the document making it durable becomes ineffective in such an unfortunate scenario. Another feature of a Power of Attorney controls when or if the Power of Attorney every becomes effective or grants authority. A Springing Durable Power of Attorney (typically drafted with all of the authority of a General Power of Attorney) is used to plan for such unfortunate events as incapacity or mental illness. The Springing Durable Power of Attorney is ineffective unless the person who executed it becomes incapacitated. It then springs into effect (becomes a normal power of attorney) and allows the person who is named in the document to handle the affairs of incapacitated individual. The Springing Durable Power of Attorney becomes ineffective again if the grantor recovers. The document can include provisions requiring the person holding the Power of Attorney to get a doctor’s opinion regarding incapacity of the Grantor and attach it to the Springing Durable Power of Attorney before it becomes effective.

This document is an excellent estate planning device that has no present effect. While many of us take the time necessary to plan for our death, we do little to plan for what happens in the event of a serious accident or condition where we are unable to handle our own affairs.

Jason M. Gordon

www.GAWillsOnline.com