A springing power of attorney is a unique type of POA that remains dormant until a specific triggering event occurs, typically the principal's mental incapacitation. Unlike an immediate POA, which takes effect the moment it is signed, a springing POA "springs" into action only when predefined conditions are met. This concept appeals to many people, but it comes with both advantages and significant practical challenges that deserve careful consideration.
How a Springing POA Works
A springing power of attorney includes language that delays the agent's authority until a specified event happens. The most common trigger is the principal's mental incapacity, usually requiring certification by one or more physicians.
For example, a typical springing POA might state that the agent's authority becomes effective upon the written certification of two licensed physicians that the principal is unable to manage their own financial affairs due to mental or physical incapacity.
Until those conditions are satisfied, the agent has no legal authority to act. The POA document exists, but it is essentially inactive. The agent cannot access bank accounts, sign contracts, make medical decisions, or take any other action on the principal's behalf.
Once the triggering event occurs and is properly documented, the agent presents the POA along with the required evidence (such as physician certifications) to the relevant institutions and begins exercising their authority.
The Pros of a Springing POA
Peace of Mind About Premature Use
The primary advantage of a springing POA is the security of knowing that your agent cannot exercise any authority until it is genuinely needed. For people who are uncomfortable with the idea of someone else having immediate access to their financial or medical affairs, this restriction provides real peace of mind.
Protection Against Unauthorized Action
Because the agent has no authority until the trigger occurs, there is no risk of the agent acting prematurely, making unauthorized transactions, or overstepping their bounds while the principal is still fully capable of managing their own affairs.
Clear Activation Point
A springing POA creates a defined moment when authority transfers. This clarity can be helpful for family members and institutions who want a clear signal that the agent is now authorized to act.
Principal Retains Full Control
Until the springing condition is met, the principal maintains complete, undiluted control over their own affairs. There is no parallel authority running alongside theirs, which some people find preferable from both a practical and psychological standpoint.
The Cons of a Springing POA
Delays When Time Matters Most
This is the most significant drawback. When a medical emergency or sudden incapacity occurs, the agent must first obtain the required certifications before they can act. This process can take days or even weeks, during which bills may go unpaid, insurance claims may lapse, mortgage payments may be missed, and medical decisions may be delayed.
In a crisis, every day matters. The bureaucratic steps required to activate a springing POA can create a dangerous gap between when help is needed and when the agent can legally provide it.
Physician Certification Challenges
Obtaining a physician's written certification of incapacity is not always straightforward. The principal's doctor may be unavailable, may be reluctant to make a definitive incapacity determination, or may want to conduct extensive evaluations before issuing a certification. HIPAA privacy rules may also complicate the physician's ability to share medical information with the agent before the POA is activated.
If the POA requires two physicians to certify incapacity, the process becomes even more complex. Finding two physicians who are familiar with the principal and willing to provide timely certifications can be a real challenge.
Third-Party Resistance
Banks, financial institutions, and other third parties are often hesitant to accept springing POAs. They may question whether the triggering condition has been properly satisfied, require their legal departments to review the physician certifications, or simply prefer to wait rather than risk accepting an improperly activated POA.
This resistance can create additional delays and frustrations for the agent, precisely when they are already dealing with a stressful situation.
Not Available Everywhere
Some states have moved away from springing POAs. States that have adopted the Uniform Power of Attorney Act may presume that all POAs are immediately effective, and some may not recognize springing provisions at all. If you are considering a springing POA, you need to confirm that your state allows them.
Ambiguity About Triggering Conditions
Even with carefully drafted language, questions can arise about whether the triggering conditions have been met. What constitutes "incapacity"? Does a temporary condition like a medically induced coma qualify? What if the principal has lucid intervals? These ambiguities can lead to disputes among family members, between the agent and third parties, or even in court.
Alternatives to a Springing POA
Given the practical challenges of springing POAs, many estate planning professionals recommend alternatives that achieve similar goals with fewer drawbacks.
Immediate POA with Trusted Agent
The most common alternative is creating an immediate POA and choosing an agent you trust implicitly. The agent has authority from the moment of signing but is bound by fiduciary duties. If you trust your agent, the risk of premature misuse is low, and the benefit of immediate availability is significant.
Immediate POA with Delayed Delivery
Another approach is to sign an immediate POA but leave the original document with a trusted custodian. The document is not given to the agent until certain conditions are met, such as a physician's determination of incapacity. This achieves a similar outcome to a springing POA without the legal complexity, since the document itself is immediately effective and simply needs to be delivered to the agent.
Co-Agent Arrangements
Naming two co-agents who must act together can provide a check on either agent's unilateral action. While co-agent arrangements have their own complications, they can address concerns about premature use while keeping the POA immediately effective.
Making the Decision
When deciding whether a springing POA is right for you, ask yourself these questions. Do you trust your chosen agent to exercise authority responsibly, even before you become incapacitated? Are you willing to accept the potential delays and complications that come with a springing POA? Does your state recognize springing POAs? Are there alternative structures that would address your concerns without the drawbacks of a springing mechanism?
For many people, the answer is that an immediate POA with a carefully chosen agent provides the best balance of protection and practicality. But if you strongly prefer the added security of a springing mechanism, make sure the document is drafted carefully to minimize ambiguity and delays.
Get the Right Guidance
Whether you choose a springing or immediate POA, the quality of the document matters. mypoa.ai can help you create a power of attorney tailored to your preferences and your state's requirements. After generating your documents, follow the execution instructions included with your download to ensure proper signing, witnessing, and notarization.