Durable Powers - "Springing or Immediate"?

There is no consensus agreement among legal professionals as to whether it is best for clients to give their attorney in fact immediate powers, or to make those powers springing. Both types of documents have their pros and cons.

The difficulties with an immediate power of attorney are obvious; no one would be appointing someone to be their attorney in fact if he or she did not trust the person, yet we know there have been many times when, once granted, attorney in fact powers have been used by the agent to inappropriately manage assets of the principal. The benefit of the immediate powers is that the agent can promptly step in to take care of financial matters when the principal needs them to do so, without the delays and difficulties that exist with a springing power of attorney.

The springing power of attorney inevitably causes delay, due simply to the need to have the principal’s incapacity established by two physicians or by court order. The CEB points out a variety of problems with the springing DPA, including the difficulties that arise when a person’s descent into incapacity is gradual, and unclear. Additionally, some institutions refuse to accept a springing DPA, and some states actually forbid this appointment.

The decision as to whether to make the attorney in fact powers springing or immediate is one of the many situations in which there is no clear right or wrong answer that will work for every client. The best that can be done is to be sure the client understands their options, and discusses any concerns with their attorney.